COPYRIGHT TERM, HLM LABEUNG, AND HLM
PRESERVATION LEGISLATION
Y 4. J 89/1:104/53
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Copuriaht Tern: Flln LabelinOi and...
BEFORE THE
SUBCOMMITTEE OX
COURTS AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 989, H.R. 1248, and H.R. 1734
COPYRIGHT TERM, FILM LABELING, AND FILM PRESERVATION
LEGISLATION
JUNE 1 AND JULY 13, 1995
Serial No. 53
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bupenntendenf of Documents
DiiPOSlTORY
JUiM 2 5 1996
Boston Public Library
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Printed for the use of the Committee on the Judiciary
COPYRIGHT TERM, HLM LABEUNG, AND HLM
PRESERVATION LEGISUTION
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
COURTS AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 989, H.R. 1248, and H.R. 1734
COPYRIGHT TERM, FILM LABELING, AND FILM PRESERVATION
LEGISLATION
JUNE 1 AND JULY 13, 1995
Serial No. 53
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
23-267 WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-052625-6
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan
F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JOHN BRYANT, Texas
STEVEN SCHIFF, New Mexico JACK REED, Rhode Island
ELTON GALLEGLY, Cahfomia JERROLD NADLER, New York
CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia
BOB INGLIS, South Carolina MELVIN L. WATT, North CaroUna
BOB GOODLATTE, Virginia XAVpiR BECERRA, California
STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York
MARTIN R. HOKE, Ohio ZOE LOFGREN, California
SONNY BONO, CaUfomia SHEILA JACKSON LEE, Texas
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
Alan F. Coffey, Jr., General Counsel / Staff Director
Julian Epstein, Minority Staff Director
Subcommittee on Courts and Intellectual Property
CARLOS J. MOORHEAD, California, Chairman
F JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado
Wisconsin JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North CaroUna HOWARD L. BERMAN, California
BOB GOODLATTE, Virginia XAVIER BECERRA, CaUfomia
SONNY BONO, CaUfomia RICK BOUCHER, Virginia
GEORGE W. GEKAS, Pennsylvania JERROLD NADLER, New York
ELTON GALLEGLY, CaUfomia
CHARLES T. CANADY, Florida
MARTIN R. HOKE, Ohio
Thomas E. Mooney, Chief Counsel
Joseph V. Wolfe, Counsel
Mitch Glazier, Assistant Counsel
Jon Dudas, Assistant Counsel
Betty Wheeler, Minority Counsel
(II)
CONTENTS
HEARINGS DATES
Page
June 1, 1995 1
July 13, 1995 155
TEXTS OF BILLS
H.R. 989 4
H.R. 1248 8
H.R. 1734 24
OPENING STATEMENT
Moorhead, Hon. Carlos J., a Representative in Congress from the State of
California, and chairman, Subcommittee on Courts and Intellectual Prop-
erty 1
WITNESSES
Barshefsky, Ambassador Charlene, Deputy U.S. Trade Representative, Office
of the U.S. Trade RepresenUtive 205
Belton, John, professor, Rutgers University, on behalf of the Society for Cin-
ema Studies 281
Bergman, Marilyn, songwriter, president and chairman of the board, Amer-
ican Society oi Composers, Authors and Publishers 56
Coohdge, Martha, member, Directors Guild of America, Inc 106
Eves, Jeffrey P., president, Video Software Dealers Association, on behalf
of the Committee for America's Copyright Community 113
Jones, Quincy, songwriter and member, AmSong, Inc 233
Karjala, Dennis S., professor of law, Arizona State University, on behalf
of the U.S. Copyright and Intellectual Property Law Professors 290
Koenigsberg, Fred, counsel, ASCAP 99
Lehman, Bruce A., Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks 212
Mancini, Mrs. Henry 112
Murphy, Edward P., president and CEO, National Music Publishers' Associa-
tion, Lac 74
Patry, William F., professor, Benjamin N. Cardozo College of Law 312
Peters, Marybeth, Register of Copyrights and Associate Librarian for Copy-
right Services, Library of Congress 157
Reimman, J.H., professor of law, Vanderbilt University 355
Richmond, Edward, president. Association of Moving Image Archivists 64
Saffer, Judith M., assistant general counsel. Broadcast Music, Inc 141
Valenti, Jack, president and CEO, Motion Picture Association of America 50
Weller, Michael, playwrite, screenwriter, and member. Writers Guild of Amer-
ica, East 132
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS
Barrett, Mary Ellin, daughter of Irving Berlin: Prepared statement 272
Barshefsky, Ambassador Charlene, Deputy U.S. Trade Representative, Office
of the U.S. Trade Representative: Prepared statement 207
Belton, John, professor, Rutgers University, on behalf of the Society for Cin-
ema Studies: Prepared statement 285
(III)
IV
Page
Bergman, Marilyn, songwriter, president and chairman of the board, Amer-
ican Society of Composers, Autnors and Publishers: Prepared statement 59
Coolidge, Martha, member, Directors Guild of America, Inc.: Prepared state-
ment 109
Donaldson, Ellen, Donaldson Publishing Co., vice president, AmSong: Pre-
pared statement 247
Durham, Marsha: Prepared statement 268
Dylan, Bob: Prepared statement 240
Eves, Jeffrey P., president. Video Software Dealers Association, on behalf
of the Committee for America's Copyright Community: Prepared statement 116
Henley, Don: Prepared statement 241
Jones, Quincy, songwriter and member, AmSong, Inc.: Prepared statement 237
Kariala, Dennis S., professor of law, Arizona State University, on behalf
01 the U.S. Copyright and Intellectual Property Law Professors: Prepared
statement 292
Lehman, Bruce A., Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks: Prepared statement 214
Mamcini, Mrs. Henry: Prepared statement 246
Menken, Alan, composer: Prepared statement 243
Miller, Betty Kern: Prepared statement 270
Murphy, Edward P., president and CEO, National Music Publishers' Associa-
tion, Lac: Prepared statement 78
Patry, William F., professor, Benjamin N. Cardozo College of Law: Prepared
statement 316
Peters, Marybeth, Register of Copyrights and Associate Librarian for Copy-
right Services, Library of Congress: Prepared statement 161
Reicnman, J.H., professor of law, Vanderbilt University: Prepared statement . 359
Richmond, Edward, president. Association of Moving Image Archivists: Pre-
pared statement 67
SafTer, Judith M., assistant general counsel. Broadcast Music, Inc.: Prepared
statement 142
Schroeder, Hon. Patricia, a Representative in Congress from the State of
Colorado: Prepared statement 224
Schoenbei*g, E. Randol: Prepared statement 264
Sondheim, Stephen: Prepared statement 244
Valenti, Jack, president and CEO, Motion Picture Association of America:
Prepfired statement 53
Weller, Michael, playwrite, screenwriter, and member. Writers Guild of Amer-
ica, East: Prepared statement 135
APPENDIX
Material submitted for the hearings 423
COPYRIGHT TERM, FILM LABELING, AND
FILM PRESERVATION LEGISLATION
THURSDAY, JUNE 1, 1995
House of Representatives,
subcommitee on courts and
Intellectual Property,
Committee on the Judiciary,
Pasadena, CA.
The subcommittee met, pursuant to notice, at 9 a.m., at the Rich-
ard H. Chambers U.S. Court of Appeals Building, 1255 Grand Ave-
nue, Pasadena, CA, Hon. Carlos J. Moorhead (chairman of the sub-
committee) presiding.
Present: Representatives Carlos J. Moorhead, Sonny Bono, John
Conyers, Jr., Howard L. Berman, and Xavier Becerra.
Also present: Joseph V. Wolfe, counsel; Mitch Glazier, assistant
counsel; Sheila Wood, secretary; Julian Epstein, minority staff di-
rector; and Betty Wheeler, minority counsel.
OPENING STATEMENT OF CHAIRMAN MOORHEAD
Mr. Moorhead. The Subcommittee on Courts and Intellectual
Property will come to order.
Today, the subcommittee is conducting a hearing on H.R. 989,
the Copyright Term Extension Act of 1995; H.R. 1248, the Film
Disclosure Act of 1995; and H.R. 1734, the National Film Preserva-
tion Act of 1995.
H.R. 989, which I introduced, would extend the term of owner-
ship of a copyrighted work from the life of the author plus 50 years
to the life of the author plus 70 years. I am pleased that the rank-
ing minority member of the subcommittee, Representative Schroe-
der and Representatives Coble, Goodlatte, Bono, Gekas, Berman,
Nadler, and Clement are cosponsoring the legislation. This change
will bring U.S. law into conformity with that of the European
Union whose member States are among the largest users of our
copyrighted works.
The last time the Congress considered and enacted copyright
term extension legislation was 1976. At that time, the House report
noted that copyright conformity provides certainty and simplicity in
international business dealings.
The intent of the 1976 act was twofold: First, to bring the term
of the works by Americans into agreement with the then minimum
term provided by European countries; and second, to assure the au-
thor and his or her heirs of the fair economic benefits derived from
(1)
the author's work. The 1976 law needs to be revisited since neither
of these objectives is being met.
In October 1993, the European Union adopted a directive man-
dating copyright term protection equal to the life of the author plus
70 years for all works originating in the European Union, no later
than the first of July of this year. The E.U. action has serious trade
implications for the United States.
United States and the E.U. nations are all signatories of the
Berne Copyright Convention, which includes the so-called rule of
the shorter term, which accords copyright protection for a term
which is the shorter of life plus 70 years or the term of copyright
in the country of origin.
Once this directive is implemented, U.S. works will only be
granted copyright protection for the shorter life plus 50-year term
before falling into the public domain.
The main reasons for this extension of term are fairness and eco-
nomics. If the Congress does not extend to Americans the same
copyright protection afforded their counterparts in Europe, Amer-
ican creators will have 20 years less protection than their Euro-
pean counterparts; 20 years during which Europeans will not be
paying Americans for their copyrighted works. And whose works do
Europeans buy more than any other country? Works of American
artists. This would be harmful to the country and work a hardship
on American creators.
The second bill before us this morning is H.R. 1248, the Film
Disclosure Act of 1995. This legislation seeks to protect the rights
of filmmakers who fear that post production changes in films
threatens the integrity of their creative works. The bill would re-
quire that films be labeled to indicate what alterations have been
made and to indicate if the director, screenwriter, or cinematog-
rapher objects to these alterations.
I recall when the former chairman of this subcommittee. Bob
Kastenmeier, held a hearing on legislation similar to H.R. 1248 at
UCLA back in January 1990. At that hearing. Bob indicated that
it was his belief that there are certain criteria that Congress must
use in considering any dispute of this nature.
They are: First, we must ask the proponents of change to bear
the burden of proving that the change is necessary, fair, and prac-
tical.
Second, we must always recognize and balance the legitimate
rights of creators, producers or copyright holders, and the public in-
terest.
Third, a private solution negotiated by interested parties is al-
ways preferable to congressional intervention. I think this set of
criteria is just as valuable today for evaluating a proposal such as
H.R. 1248.
I would urge all of the parties involved to get together some time
this year, or as early as possible, and try to see what arrangements
can be made that is agreeable to all the parties. I would really urge
you to do that. I think it would be very serious to have Congress
make the determination. And I think that all of you work in the
same industry, and you live off of the proceeds of these films. And,
surely, I think everybody should try to work out something to-
gether that satisfies everyone's interests.
The third piece of legislation on the agenda for this morning's
hearing is H.R. 1734, the National Film Preservation Act of 1995.
In 1988, Congress established the National Film Preservation
Board to focus on the important goal of film preservation.
In 1992, the board was reauthorized for another 3 years. The
1992 act also called for a 1-year study of the national film preser-
vation problem.
Among the many important findings in the film preservation
study was that fewer than 20 percent of feature films from the
1920's survive in complete form. For features of the 1910's, the sur-
vival rate falls to about 10 percent. Of films made before 1950, only
about half survive.
In addition to the study, the 1992 Reauthorization Act also called
for a plan to address the issues of film preservation. Completed in
August 1994, the plan entitled, "Redefining Film Preservation,"
was the product of 6 months of negotiations and consensus building
among archivists, educators, filmmakers, and film industry execu-
tives.
Under H.R. 1734, the Librarian of Congress would be able to con-
tinue implementation of the national film preservation plan. Title
I of the legislation would reauthorize the National Film Preserva-
tion Board while title II would establish the National Film Preser-
vation Foundation to raise funds to concentrate on those films that
are not preserved by commercial interests such as public domain,
educational, historical footage, and so forth as well as to further
other parts of the national film preservation plan.
This morning we have two distinguished panels of witnesses and
I look forward to their testimony.
[The bills, H.R. 989, H.R. 1248, and H.R. 1734, follow:]
104th congress
1st Session
H. R. 989
To amend title 17, United States Code, with respect to the duration of
cop\Tight, and for other purposes.
IX THE HOUSE OF REPRESEXTATR^S
February 16, 1995
Mr. MOORHEAD (for himself, Mrs. SCHROEDER, Mr. COBLE, Mr. GOODLATTE,
Mr. Bo.N'O, Mr. Gekas, Mr. BERiiAN, Mr. Nadler, Mr. Clement, and
Mr. Gallegly) introduced the following bill; which was referred to the
Committee on the Judiciarv
A BILL
To amend title 17, United States Code, with respect to
the duration of copyright, and for other purposes.
1 Be it enacted by the Senate and House of Bepresenta-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Copyright Term Ex-
5 tension Act of 1995".
6 SEC. 2. DURATION OF COPYRIGHT PROVISIONS.
7 (a) Preemption With Respect to Other
8 Laws. — Section 301(c) of title 17, United States Code,
2
1 is amended by striking "Februan' 15, 2047" each place
2 it appears and inserting "Februan' 15, 2067".
3 (b) Duration of Cop^-right: Works Created Ox
4 or ^U^ter J.VXUARY 1, 1978. — Section 302 of title 17,
5 United States Code, is amended —
6 (1) in subsection (a) by striking "fiftA*" and in-
7 serting "70";
8 (2) in subsection (b) by striking "fiftj-" and in-
9 serting "70";
10 (3) in subsection (c) in the first sentence —
11 (A) by striking "seventj'-five" and insert-
12 ing "95"; and
13 (B) by striking "one hundred" and insert-
14 ing "120"; and
15 (4) in subsection (e) in the first sentence —
16 (A) by striking "seventA'-five" and insert-
17 ing "95";
18 (B) by striking "one hundred" and insert-
19 ing "120"; and
20 (C) by striking "fifty" each place it ap-
21 pears and inserting "70".
22 (c) Duration of Cop^tught: Works Created
23 BUT NOT Published or Cop^tughted Before J^\xit-
24 .VRY 1, 1978.— Section 303 of title 17, United States
25 Code, is amended in the second sentence —
•HR 989 m
3
1 (1) by striking "December 31, 2002" each
2 place it appears and inserting "December 31,
3 2012"; and
4 (2) by striking "December 31, 2027" and in-
5 serting "December 31, 2047".
6 (d) DUILVTIOX OF COP-iHIGHT: SUBSISTLXG COPY-
7 RIGHTS. —
8 (1) Section 304 of title 17, United States Code,
9 is amended —
10 (A) in subsection (a) —
11 (i) in paragraph (1) —
12 (I) in subparagraph (B) bj' strik-
13 ing "47" and inserting "67"; and
14 (n) in subparagraph (C) by
15 striking "47" and inserting "67";
16 (ii) in paragraph (2) —
17 (I) in subparagraph (A) by strik-
18 mg "47" and inserting "67"; and
19 (II) in subparagraph (B) by
20 striking "47" and inserting "67"; and
21 (iii) in paragraph (3) —
22 (I) in subparagraph (A)(i) by
23 striking "47" and inserting "67"; and
24 (II) in subparagraph (B) by
25 striking "47" and inserting "67"; and
•HR 989 IH
4
1 (B) in subsection (b) by striking "seventy-
2 five" and inserting "95".
3 (2) Section 102 of the Cop>Tight Renewal Act
4 of 1992 (Public Law 102-307; 106 Stat. 266; 17
5 U.S.C. 304 note) is amended —
6 (A) in subsection (c) —
7 (i) by striking "47" and inserting
8 "67";
9 (ii) by striking "(as amended by sub-
10 section (a) of this section)"; and
11 (iii) by striking "effective date of this
12 section" each place it appears and insert-
13 ing "effective date of the Copwight Term
14 Extension Act of 1995"; and
15 (B) in subsection (g)(2) in the second sen-
16 tence by inserting before the period the follow-
17 ing: ", except each reference to forts'-seven
18 years in such provisions shall be deemed to be
19 67 years".
20 SEC. 3. EFFECTIVE DATE.
21 This Act and the amendments made by this Act shall
22 take effect on the date of the enactment of tliis Act.
O
•HR 989 ra
104th congress
1st Session
H.R.1248
To amend the Lanham Act to require certain disclosures relating to materially
altered films.
IN THE HOUSE OF REPRESENTATIVES
March 15, 1995
Mr. Frank of Massachusetts (for himself, Mr. CONYERS, and Mr. Bryant
of Texas) introduced the following bill; which was referred to the Com-
mittee on the Judiciary
A BILL
To amend the Lanham Act to require certain disclosures
relating to materially altered films.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Film Disclosure Act
5 of 1995".
6 SEC. 2. AMENDMENT TO THE LANHAM ACT.
7 Section 43 of the Act entitled "An Act to provide for
8 the registration and protection of trade-marks used in
9 commerce, to carry out the provisions of certain inter-
10 national conventions, and for other purposes", approved
2
1 July 5, 1946, commonly known as the Lanham Act (15
2 U.S.C. 1125), is amended by adding at the end the
3 following:
4 "(c)(1)(A) Any distributor or network that proposes
5 to exploit a materially altered motion picture shall —
6 "(i) make a good faith effort to notify each ar-
7 tistic author of the motion picture in writing and by
8 registered mail and in a reasonable amount of time
9 prior to such exploitation;
10 "(ii) determine the objections of any artistic au-
1 1 thor so notified to any material alteration of the mo-
12 tion picture;
13 "(iii) determine the objection of any artistic au-
14 thor so notified by the questionnaire set forth in
15 paragraph (9) to any type of future material alter-
16 ations which are in addition to those specifically pro-
17 posed for the motion picture to be exploited;
18 "(iv) if any objections under clause (ii) or (iii)
19 are determined, include the applicable label under
20 paragraph (6) or (8) in, or affix such label to, all
21 copies of the motion picture before —
22 "(I) the pubhc performance of the materi-
23 ally altered motion picture if it is already in dis-
24 tribution, or
•iHR 1248 ja
10
3
1 "(11) the initial distribution of the materi-
2 ally altered motion picture to any exhibitor or
3 retail provider; and
4 "(v) in the event of objections by an artistic au-
5 thor to any future material alterations, include or
6 affix such objections to any copy of the motion pic-
7 ture distributed or transmitted to any exhibitor or
8 retail provider.
9 "(B) Whenever a distributor or network exploits a
10 motion picture which has already been materially altered,
1 1 such distributor or network shall not be required to satisfy
12 the requirements of subparagraph (A) (i), (ii), and (iii),
13 if—
14 "(i) such distributor or network does not ftir-
15 ther materially alter such motion picture; and
16 "(ii) such motion picture was materially altered
17 by another distributor or network that complied fully
18 with all of the requirements of subparagraph (A).
19 "(C)(i) The requirement of a good faith effort under
20 subparagraph (A)(i) is satisfied if a distributor or network
21 that has not previously been notified by each artistic au-
22 thor of a motion picture —
23 "(I) requests in writing the name and address
24 of each artistic author of the motion picture from
25 the appropriate professional guild, indicating a re-
•HR 1248 IH
11
4
1 sponse date of not earlier than 30 days after the
2 date of the request, by which the appropriate profes-
3 sional guild must respond; and
4 "(11) upon receipt of such information from the
5 appropriate professional guild within the time speci-
6 fied in the request, notifies each artistic author of
7 the motion picture in a reasonable amount of time
8 before the exploitation of the motion picture by such
9 network or distributor.
10 "(ii) The notice to each artistic author under this
11 paragraph shall contain a specific date, not earlier than
12 30 days after the date of such notice, by which the individ-
13 ual so notified shall respond in accordance with subpara-
14 graph (A)(ii). Failure of the artistic author or the appro-
1 5 priate professional guild to respond within the time period
16 specified in the notice shall relieve the distributor or net-
17 work of all liability under subparagraph (A).
18 "(D) The requirements of this paragraph for an ex-
19 hibitor shall be limited to —
20 "(i) broadcasting, cablecasting, exliibiting, or
21 distributing all labels required under this section in
22 their entirety that are included with or distributed
23 by the network or distributor of the motion picture;
24 and
•HR 1248>fH
12
5
1 "(ii) including or affixing a label described in
2 paragraphs (6) and (8) on a materially altered mo-
3 tion picture for any material alterations performed
4 by the exhibitor to which any artistic author has ob-
5 jected under subparagraph (A)(iii).
6 "(E)(i) The provisions of this paragraph shall apply
7 with respect to motion pictures intended for home use
8 through either retail purchase or rental, except that no
9 requirement imposed under this paragraph shall apply to
10 a motion picture which has been packaged for distribution
11 to retail providers before the effective date of this sub-
12 section.
13 "(ii) The obligations under this paragraph of a retail
14 provider of motion pictures intended for home use shall
15 be limited to including or distributing all labels required
16 under this paragraph in their entirety that are affixed or
17 included by a distributor or network.
18 "(F) There shall be no consideration in excess of one
19 dollar given in exchange for an artistic author's waiver of
20 any objection or waiver of the right to object under this
21 subsection.
22 "(2) (A) Any artistic author of a motion picture that
23 is exploited within the United States who believes he or
24 she is or is likely to be damaged by a violation of this
25 subsection may bring a civil action for appropriate relief,
•HR 1248 IH
13
6
1 as provided in this paragraph, on account of such viola-
2 tion, without regard to the nationaUty or domicile of the
3 artistic author.
4 "(B) (i) In any action under subparagraph (A), the
5 court shall have power to grant injunctions, according to
6 the principles of equity and upon such terms as the court
7 deems reasonable, to prevent the violation of this sub-
8 section. Any such injunction may include a provision di-
9 recting the defendant to file with the court and serve on
10 the plaintiff, within 30 days after the service on the de-
1 1 fendant of such injunction, or such extended period as the
12 court may direct, a report in writing under oath setting
13 forth in detail the manner and form in which the defend-
14 ant has complied with the injunction. Any such injunction
15 granted upon hearing, after notice to the defendant, by
16 any district court of the United States —
17 "(I) may be served on the parties against whom
18 such injunction is granted anywhere in the United
19 States where they may be found; and
20 "(11) shall be operative and may be enforced by
21 proceedings to punish for contempt, or otherwise, by
22 the court by which such injunction was granted, or
23 by any other United States district court in whose
24 jurisdiction the defendant may be found.
14
7
1 "(ii) When a violation of any right of an artistic au-
2 thor is estabhshed in any civil action arising under this
3 subsection, the plaintiff shall be entitled to the remedies
4 provided under section 35(a).
5 "(iii) In any action under subparagraph (A), the
6 court may order that all film packaging of a materially
7 altered motion picture (including film packages of motion
8 pictures intended for home use through either retail pur-
9 chase or rental) that is the subject of the violation shall
10 be delivered up and destroyed.
11 "(C) No action shall be maintained under this para-
1 2 graph unless —
13 "(i) it is commenced within 1 year after the
14 right of action accrues, and
15 "(ii) if brought by a designee described in para-
16 graph (5)(A)(ii), it is commenced within the term of
17 copyright of the motion picture involved.
18 "(3) Any disclosure requirements imposed under the
19 common law or statutes of any State respecting the mate-
20 rial alteration of motion pictures are preempted by this
21 subsection.
22 "(4) To facilitate the location of a potentially ag-
23 grieved party, each artistic author of a motion picture may
24 notify the copyright owner of the motion picture or any
25 appropriate professional guild. The professional guilds
•HR 1248 m
15
8
1 may each maintain a Professional Guild Registry includ-
2 ing the names and addresses of artistic authors so notify-
3 ing them and may make available information contained
4 in a Professional Guild Registry in order to facilitate the
5 location of any artistic author for purposes of paragraph
6 (1)(A). No cause of action shall accrue against any profes-
7 sional guild for failure to create or maintain a Professional
8 Guild Registry or for any failure to provide information
9 pursuant to paragraph (l)(A)(i).
10 "(5) As used in this subsection —
11 "(A) the term 'artistic author' means —
12 "(i) the principal director and principal
13 screenwriter of a motion picture and, to the ex-
14 tent a motion picture is colorized or its photo-
15 graphic images materially altered, the principal
16 cinematographer of the motion picture; and
17 "(ii) a person designated by an individual
18 described in clause (i), if the designation is
19 made in writing and signed by such individual;
20 "(B) the term 'colorize' means to add color, by
21 whatever means, to a motion picture originally made
22 in black and white, and the term 'colorization'
23 means the act of colorizing;
24 "(C) the term 'distributor'—
•HR 1248 IH
16
9
1 "(i) means any person, vendor, or syn-
2 dicator who engages in the wholesale distribu-
3 tion of motion pictures to any exhibitor, net-
4 work, retail provider, or other person who pub-
5 licly performs motion pictures by means of any
6 technology, and
7 "(ii) does not include laboratories or other
8 providers of technical services to the motion pic-
9 ture, video, or television industry;
10 "(D) the term 'editing' means the purposeful or
11 accidental removal of existing material or insertion
12 of new material;
13 "(E) the term 'exhibitor' means any local
14 broadcast station, cable system, airline, motion pic-
15 ture theater, or other person that publicly performs
16 a motion picture by means of any technology;
17 "(F) the term 'exploit' means to exhibit publicly
18 or offer to the public through sale or lease, and the
19 , term 'exploitation' means the act of exploiting;
20 "(G) the term 'film' or 'motion picture'
21 means —
22 "(i) a theatrical motion picture, after its
23 publication, of 60 minutes duration or greater,
24 intended for exhibition, public performance,
25 public sale or lease, and
•HR 1248 IH
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10
1 "(ii) does not include episodic television
2 programs of less than 60 minutes duration (ex-
3 elusive of commercials), motion pictures pre-
4 pared for private commercial or industrial pur-
5 poses, or advertisements;
6 "(H) the term Uexiconning' means altering the
7 sound track of a motion picture to conform the
8 speed of the vocal or musical portion of the motion
9 picture to the visual images of the motion picture,
10 in a case in which the motion picture has been the
1 1 subject of time compression or expansion;
12 "(I) the terms 'materially alter' and 'material
13 alteration' —
14 "(i) refer to any change made to a motion
15 picture;
16 "(ii) include, but are not limited to, the
17 processes of colorization, lexiconning, time com-
18 pression or expansion, panning and scanning,
19 and editing; and
20 "(iii) do not include insertions for commer-
21 cial breaks or public service announcements, ed-
22 iting to comply with the requirements of the
23 Federal Communications Commission (in this
24 subparagraph referred to as the 'FCC'), trans-
25 fer of film to videotape or any other secondary
•HR 1248 IH
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11
1 media preparation of a motion picture for for-
2 eign distribution to the extent that subtitling
3 and editing are Umited to those alterations
4 made under foreign standards which are no
5 more stringent than existing FCC standards, or
6 activities the purpose of which is the restoration
7 of the motion picture to its original version;
8 "(J) the term 'network' means any person who
9 distributes motion pictures to broadcasting stations
10 or cable systems on a regional or national basis for
1 1 public performance on an interconnected basis;
12 "(K) the term 'panning and scanning' means
13 the process by which a motion picture, composed for
14 viewing on theater screens, is adapted for viewing on
15 television screens by modification of the ratio of
16 width to height of the motion picture and the selec-
17 tion, by a person other than the principal director of
18 the motion picture, of some portion of the entire pic-
19 ture for viewing;
20 "(L) the term 'professional guild' means —
21 "(i) in the case of directors, the Directors
22 Guild of America (DGA);
23 "(ii) in the case of screenwriters, the Writ-
24 ers Guild of America-West (WGA-W) and the
25 Writers Guild of America-East (WGA-E); and
•HR 1248 IH
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12
1 "(iii) in the case of cinematographers, the
2 International Photographers Guild (IPG), and
3 the American Society of Cinematographers
4 (ASC);
5 "(M) the term 'Professional Guild Registry'
6 means a list of names and addresses of artistic au-
7 thors that is readily available from the files of a pro-
8 fessional guild;
9 "(N) the term 'publication' means, with respect
10 to a motion picture, the first paid public exhibition
11 of the work other than previews, trial runs, and fes-
12 tivals;
13 "(O) the term 'retail provider' means the pro-
14 prietor of a retail outlet that sells or leases motion
15 pictures for home use;
16 "(P) the term 'secondary media' means any me-
17 dium, including, but not Hmited to, video cassette or
18 video disc, other than television broadcast or theat-
19 rical release, for use on which motion pictures are
20 sold, leased, or distributed to the public;
21 "(Q) the term 'syndicator' means any person
22 who distributes a motion picture to a broadcast tele-
23 vision station, cable television system, or any other
24 means of distribution by which programming is de-
25 livered to television viewers;
•HR 1248 IH
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13
1 "(R) the terms 'time compression' and 'time ex-
2 pansion' mean the alteration of the speed of a mo-
3 tion picture or a portion thereof with the result of
4 shortening or lengthening the running time of the
5 motion picture; and
6 "(S) the term 'vendor' means the wholesaler or
7 packager of a motion picture which is intended for
8 wholesale distribution to retail providers.
9 "(6) (A) A label for a materially altered version of a
10 motion picture intended for public performance or home
11 use shall consist of a panel card immediately preceding
12 the commencement of the motion picture, which bears one
13 or more of the following statements, as appropriate, in leg-
14 ible type and displayed on a conspicuous and readable
15 basis:
16 '"THIS FILM IS NOT THE VERSION ORIGI-
17 NALLY RELEASED. mins. and sees.
18 have been cut [or, if appropriate, added]. The director,
19 , and
20 screenwriter, , object because this
21 alteration changes the narrative and/or characterization.
22 It has (also) been panned and scanned. The director and
23 cinematographer, , object be-
24 cause this alteration removes visual information and
25 changes the composition of the images. It has (also) been
•HR 1248 IH
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14
1 colorized. Colors have been added by computer to the
2 original black and white images. The director and cine-
3 matographer object to this alteration because it eliminates
4 the black and white photography and changes the photo-
5 graphic images of the actors. It has (also) been electroni-
6 cally speeded up (or slowed down). The director objects
7 because this alteration changes the pace of the perform-
8 anees.'
9 "(B) A label for a motion picture that has been mate-
10 rially altered in a manner not described by any of the label
11 elements set forth in subparagraph (A) shall contain a
12 statement similar in form and substance to those set forth
13 in subparagraph (A) which accurately describes the mate-
1 4 rial alteration and the objection of the artistic author.
15 "(7) A label for a motion picture which has been ma-
16 terially altered in more than one manner, or of which an
17 individual served as more than one artistic author, need
1 8 only state the name of the artistic author once, in the first
19 objection of the artistic author so listed. In addition, a
20 label for a motion picture which has been materially al-
21 tered in more than one manner need only state once, at
22 the beginning of the label: 'THIS FILM IS NOT THE
23 VERSION ORIGINALLY RELEASED.'.
24 "(8) A label for a film package of a materially altered
25 motion picture shall consist of —
22
15
1 "(A) an area of a rectangle on the front of the
2 package which bears, as appropriate, one or more of
3 the statements Usted in paragraph (6) in a conspicu-
4 ous and legible type in contrast by typography, lay-
5 out, or color with other printed matter on the pack-
6 age; and
7 "(B) an area of a rectangle on the side of the
8 package which bears, as appropriate, one or more of
9 the statements listed in paragraph (6) in a conspicu-
10 ous and legible type in contrast by typography, lay-
11 out, or color with other printed matter on the pack-
12 age.
13 "(9) The questionnaire required under paragraph
14 (l)(A)(iii) shall consist of the following statement and re-
15 lated questions:
16 " 'In order to conform [insert name of motion
17 picture], of which you are an "artistic author", to
18 ancillary media such as television, airline exhibition,
19 video cassettes, video discs, or any other media, do
20 you object to:
21 "'(a) Editing (purposeful or accidental deletion or
22 addition of program material)?
23 Yes No
24 "'(b) Time compression/time expansion/lexiconning?
25 Yes No
•HR 1248 IH
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16
1 " '(c) Panning and scanning?
2 Yes No
3 " '(d) Colorization, if the motion picture was origi-
4 nally made in black and white?
5 Yes No '."
6 SEC. 4. EFFECTIVE DATE.
7 This Act and the amendments made by this Act shall
8 take effect 180 days after the date of the enactment of
9 this Act.
O
•HR IMS ipi-
24
104th congress
1st Session
H.R.1734
To reauthorize the National Film Preservation Board, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
May 25, 1995
Mr. MOORHEAD (for himself, Mr. CoBLE, and Mr. BOXO) introduced the fol-
lowing bill; which was referred to the Committee on the Judiciary, and
in addition to the Committee on House Oversight, for a period to be sub-
sequently determined by the Speaker, in each case for consideration of
such provisions as fall \vithin the jurisdiction of the committee concerned
A BILL
To reauthorize the National Film Preservation Board, and
for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 TITLE I— REAUTHORIZATION OF
4 THE NATIONAL FILM PRESER-
5 VATION BOARD
6 SEC. 101. SHORT TITLE.
7 This title may be cited as the "National Film Preser-
8 vationActof 1995".
25
2
1 SEC. 102. NATIONAL FILM REGISTRY OF THE LIBRARY OF
2 CONGRESS.
3 The Librarian of Congress (hereafter in this Act re-
4 ferred to as the "Librarian") shall continue the National
5 Film Registry established and maintained under the Na-
6 tional Film Preservation Act of 1988 (Public Law 100-
7 446), and the National Film Preservation Act of 1992
8 (Public Law 102-307) pursuant to the provisions of this
9 title, for the purpose of maintaining and preserving films
10 that are culturally, historically, or aesthetically significant.
1 1 SEC. 103. DUTIES OF THE LIBRARIAN OF CONGRESS.
12 (a) Powers. —
13 (1) In general. — The Librarian shall, after
14 consultation with the Board established pursuant to
15 section 104 —
16 (A) continue the implementation of the
17 comprehensive national film preservation pro-
18 gram for motion pictures established under the
19 National Film Preservation Act of 1992, in con-
20 junction with other film archivists, educators
21 and historians, copyright ovmers, film industry
22 representatives, and others involved in activities
23 related to film preservation, taking into account
24 the objectives of the national film preservation
25 study and the comprehensive national plan con-
•HR 1734 m
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3
1 ducted under the National Film Preservation
2 Act of 1992. This program shall—
3 (i) coordinate activities to assure that
4 efforts of archivists and copyright owners,
5 and others in the public and private sector,
6 are effective and complementary;
7 (ii) generate public awareness of and
8 support for these activities;
9 (iii) increase accessibility of films for
10 educational purposes; and
11 (iv) undertake studies and investiga-
12 tions of film preservation activities as
13 needed, including the efficacy of new tech-
14 nologies, and recommend solutions to im-
15 prove these practices;
16 (B) establish criteria and procedures under
17 which films may be included in the National
18 Film Registry, except that no film shall be eligi-
19 ble for inclusion in the National Film Registry
20 until 10 years after such film's first publication;
21 (C) establish procedures under which the
22 general public may make recommendations to
23 the Board regarding the inclusion of films in
24 the National Film Registry; and
•HR 1734 IH
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4
1 (D) determine which films satisfy the cri-
2 teria estabhshed under subparagraph (B) and
3 quahfy for inclusion in the National Film Reg-
4 istry, except that the Librarian shall not select
5 more than 25 films each year for inclusion in
6 the Registry.
7 (2) Publication of films ix registry. — The
8 Librarian shall publish in the Federal Register the
9 name of each film that is selected for inclusion in
10 the National Film Registry.
11 (3) Seal. — The Librarian shall provide a seal
12 to indicate that a film has been included in the Na-
13 tional Film Registry and is the Registry version of
14 that film. The Librarian shall establish guidelines
15 for approval of the use of the seal in accordance
16 with subsection (b).
17 (b) Use of Seal. — The seal provided under sub-
18 section (a)(3) may only be used on film copies of the Reg-
19 istry version of a film. Such seal may be used only after
20 the Librarian has given approval to those persons seeking
21 to apply the seal in accordance with the guidelines under
22 subsection (a)(3). In the case of copyrighted works, only
23 the copyright owner or an authorized licensee of the copy-
24 right owner may place or authorize the placement of the
25 seal on any film copy of a Registry version of a film se-
•HR 1734 IH
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5
1 lected for inclusion in the National Film Registry, and the
2 Librarian may place the seal on any film copy of the Reg-
3 istry version of any film that is maintained in the National
4 Film Registry Collection in the Library of Congress. Any-
5 one authorized to place the seal on any film copy of any
6 Registry version of a film may accompany such seal with
7 the following language: "This film was selected for inclu-
8 sion in the National Film Registry by the National Film
9 Presei'vation Board of the Library of Congress because of
10 its cultural, historical, or aesthetic significance.".
1 1 SEC. 104. NATIONAL FILM PRESERVATION BOARD.
12 (a) Number and Appointment. —
13 (1) Members. — The Librarian shall estabhsh
14 in the Library of Congress a National Film Preser-
15 vation Board to be comprised of 20 members, who
16 shall be selected by the Librarian in accordance with
17 this section. Subject to subparagraphs (C) and (N),
18 the Librarian shall request each organization listed
19 in subparagraphs (A) through (Q) to submit a list
20 of 3 candidates qualified to serve as a member of the
21 Board. Except for the members-at-large appointed
22 under subparagraph (2), the Librarian shall appoint
23 one member from each such list submitted by such
24 organizations, and shall designate from that list an
25 alternate who may attend at Board expense those
•HR 1734 Itf
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6
1 meetings to which the individual appointed to the
2 Board cannot attend. The organizations are the fol-
3 lowing:
4 (A) The Academy of Motion Picture Arts
5 and Sciences.
6 (B) The Directors Guild of America.
7 (C) The Writers Guild of America. The
8 Writers Guild of America East and the Writers
9 Guild of America West shall each nominate
10 three candidates, and a representative from one
11 organization shall be selected as the member
12 and a representative from the other organiza-
13 tion as the alternate.
14 (D) The National Society of Film Critics.
15 (E) The Society for Cinema Studies.
16 (F) The American Film Institute.
17 (G) The Department of Theatre, Film and
18 Television of the College of Fine Arts at the
19 University of California, Los Angeles.
20 (H) The Department of Film and Tele-
21 vision of the Tisch School of the Arts at New
22 York University.
23 (I) The University Film and Video Asso-
24 ciation.
•HR 1734 IH
0'a_'>C7 r»«? n
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7
1 (J) The Motion Picture Association of
2 America.
3 (K) The Alhance of Motion Picture and
4 Television Producers.
5 (L) The Screen Actors Guild of America.
6 (M) The National Association of Theater
7 Owners.
8 (N) The American Society of Cinematog-
9 raphers and the International Photographers
10 Guild, which shall jointly submit one list of 3
11 candidates from which a member and alternate
12 will be selected.
13 (0) The United States Members of the
14 International Federation of Film Archives.
15 (P) The Association of Moving Image Ar-
16 chivists.
17 (Q) The Society of Composers and
18 Lyricists.
19 (2) , Members- AT-LARGE. — In addition to the
20 Members appointed under paragraph (1), the Li-
21 brarian shall appoint up to 3 members-at-large. The
22 Librarian shall also select an alternate for each
23 member at-large, who may attend at Board expense
24 those meetings which the member at-large cannot
25 attend.
•HR 1734 IH
31
8
1 (b) Chair. — The Librarian shall appoint one member
2 of the Board to serve as Chair.
3 (c) Term of Office. —
4 (1) Terms. — The term of each member of the
5 Board shall be 5 years, except that there shall be no
6 limit to the number of terms that any individual
7 member may serve.
8 (2) Removal of member or orgaxiza-
9 TION. — The Librarian shall have the authority to re-
10 move any member of the Board, or the organization
11 listed in subsection (a) such member represents, if
12 the member, or organization, over any consecutive 2-
13 year period, fails to attend at least one regularly
14 scheduled Board meeting.
15 (3) Vacancies. — A vacancy in the Board shall
16 be filled in the manner in which the original appoint-
17 ment was made under subsection (a), except that the
18 Librarian may fill the vacancy from a list of can-
19 didates previously submitted by the organization or
20 organizations involved. Any member appointed to fill
21 a vacancy before the expiration of the term for
22 which his or her predecessor was appointed shall be
23 appointed for the remainder of such term.
24 (d) Quorum. — 11 members of the Board shall con-
25 stitute a quorum but a lesser number may hold hearings.
•HR 1734 IH
32
9
1 (e) Basic Pay. — Members of the Board shall serve
2 without pay. While away from their home or regular places
3 of business in the performance of functions of the Board,
4 members of the Board shall be allowed travel expenses,
5 including per diem in lieu of subsistence, in the same man-
6 ner as persons employed intermittently in Government
7 service are allowed expenses under section 5701 of title
8 5, United States Code.
9 (f) Meetings. — The Board shall meet at least once
10 each fiscal year. Meetings shall be at the call of the Li-
1 1 brarian.
12 (g) Conflict op Interest. — The Librarian shall
13 establish rules and procedures to address any potential
14 conflict of interest between a member of the Board and
15 responsibilities of the Board.
1 6 SEC. 105. RESPONSmiLmES AND POWERS OF BOARD.
17 (a) In General. — The Board shall review nomina-
18 tions of films submitted to it for inclusion in the National
19 Film Registry and consult with the Librarian, as provided
20 in section 103, wdth respect to the inclusion of such films
21 in the Registry and the preservation of these and other
22 films that are culturally, historically, or aesthetically sig-
23 nificant.
24 (b) Nomination of Films. — The Board shall con-
25 sider, for inclusion in the National Film Registry, nomina-
HR1734ffi
33
10
1 tions submitted by the general public as well as represent-
2 atives of the film industry, such as the guilds and societies
3 representing actors, directors, screenwriters, cinematog-
4 raphers, and other creative artists, producers, and film
5 critics, archives and other film preservation organizations,
6 and representatives of academic institutions with film
7 study programs. The Board shall nominate not more than
8 25 films each year for inclusion in the Registry.
9 (c) Powers. —
10 (1) In general. — The Board may, for the pur-
11 pose of carrying out its duties, hold such hearings,
12 sit and act at such times and places, take such testi-
13 mony, and receive such evidence, as the Librarian
14 and the Board consider appropriate.
15 (2) Service on foundation. — Two sitting
16 members of the Board shall be appointed by the Li-
17 brarian, and shall serve, as Board members of the
18 National Film Preservation Foundation, in accord-
19 ance with section 203.
20 SEC. 106. NATIONAL FILM REGISTRY COLLECTION OF THE
21 LIBRARY OF CONGRESS.
22 (a) Acquisition of Archival Quality Copies. —
23 The Librarian shall endeavor to obtain, by gift from the
24 owner, an archival quality copy of the Registry version of
25 each film included in the National Film Registry. When-
•HR 1734 ta
34
11
1 ever possible, the Librarian shall endeavor to obtain the
2 best surviving materials, including preprint materials.
3 Copyright owners and others possessing copies of such
4 materials are strongly encouraged, to further the preserva-
5 tion purposes of this Act, to provide preprint and other
6 archival elements to the Library of Congress.
7 (b) Additional Materials. — The Librarian shall
8 endeavor to obtain, for educational and research purposes,
9 additional materials related to each film included in the
10 National Film Registry, such as background materials,
1 1 production reports, shooting scripts (including continuity
12 scripts) and other similar materials.
13 (c) Property of United States. — All copies of
14 films on the National Film Registry that are received as
15 gifts or bequests by the Librarian and other materials re-
16 ceived by the Librarian under subsection (b), shall become
17 the property of the United States Government, subject to
18 the provisions of title 17, United States Code.
19 (d) Natio.xal Film Registry Collection. — ^All
20 copies of films on the National Film Registry that are re-
21 ceived by the Librarian under subsection (a), and other
22 materials received by the Librarian under subsection (b),
23 shall be maintained in the Library of Congress and be
24 known as the "National Film Registiy Collection of the
25 Library of Congress". The Librarian shall, by regulation,
•kR 1734 Ob
35
12
1 and in accordance with title 17, United States Code, pro-
2 vide for reasonable access to the films and other materials
3 in such collection for scholarly and research purposes.
4 SEC. 107. SEAL OF THE NATIONAL FILM REGISTRY.
5 (a) Use of the Seal. —
6 (1) Prohibition on distribution and exhi-
7 BITION. — No person shall knowingly distribute or ex-
8 hibit to the public a version of a film or any copy
9 of a film which bears the seal described in section
10 103(a)(3) if such film—
11 (A) is not included in the National Film
12 Registry; or
13 (B) is included in the National Film Reg-
14 istry, but such film or film copy has not been
15 approved for use of the seal by the Librarian
16 pursuant to section 103(a)(1)(D).
17 (2) Prohibition on promotion. — No person
18 shall knowingly use the seal described in section
19 103(a)(3) to promote any version of a film or film
20 copy other than a Registry version.
21 (b) Effective Date op the Seal. — The use of the
22 seal described in section 103(a)(3) shall be effective for
23 each film after the Librarian publishes in the Federal Reg-
24 ister, in accordance with section 103(a)(2), the name of
•HR 1)34 m
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13
1 that film as selected for inclusion in the National Film
2 Registry.
3 SEC. 108. REMEDIES.
4 (a) Jurisdiction. — The several district courts of the
5 United States shall have jurisdiction, for cause shown, to
6 prevent and restrain violations of section 107(a).
7 (b) Relief. —
8 (1) Removal op seal. — Except as provided in
9 paragraph (2), relief for violation of section 107(a)
10 shall be limited to the removal of the seal of the Na-
11 tional Film Registry from the film involved in the
12 violation.
13 (2) Fine and injunctive relief. — In the
14 case of a pattern or practice of the willful violation
15 of section 107(a), the United States district courts
16 may order a civil fine of not more than $10,000 and
17 appropriate injunctive relief.
1 8 sec. 109. LIMITATIONS OF REMEDIES.
19 The remedies provided in section 108 shall be the ex-
20 elusive remedies under this title, or any other Federal or
21 State law, regarding the use of the seal described in sec-
22 tion 103(a)(3).
•HR 1734 IH
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14
1 SEC. 110. STAFF OF BOARD; EXPERTS AND CONSULTANTS.
2 (a) Staff. — The Librarian may appoint and fix the
3 pay of such personnel as the Librarian considers appro-
4 priate to carry out this title.
5 (b) Experts a.\d Consultants. — The Librarian
6 may, in carrying out this title, procure temporary and
7 intermittent services under section 3109(b) of title 5,
8 United States Code, but at rates for individuals not to
9 exceed the daily equivalent of the maximum rate of basic
10 pay payable for GS-15 of the General Schedule. In no case
1 1 may a member of the Board or an alternate be paid as
12 an expert or consultant under this section.
13 SEC. 111. DEFINITIONS.
1 4 As used in this title —
15 (1) the term "Librarian" means the Librarian
16 of Congress;
17 (2) the term "Board" means the National Film
18 Preservation Board;
19 (3) the term "film" means a "motion picture"
20 as defined in section 101 of title 17, United States
21 Code, except that such term does not include any
22 work not originally fixed on film stock, such as a
23 work fixed on videotape or laser disk;
24 (4) the term "publication" means "publication"
25 as defined in section 101 of title 17 United States
26 Code; and
•HR 1734 m
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15
1 (5) the term "Registry version" means, with re-
2 spect to a film, the version of a film first published,
3 or as complete a version as bona fide preservation
4 and restoration activities by the Librarian, an archi-
5 vist other than the Librarian, or the copyright owner
6 can compile in those cases where the original mate-
7 rial has been irretrievably lost.
8 SEC. 112. AUTHORIZATION OF APPROPRIATIONS.
9 There are authorized to be appropriated to the Li-
10 brarian such sums as may be necessary to carry out the
1 1 purposes of this title, but in no fiscal year shall such sum
12 exceed $250,000.
13 SEC. 113. EFFECTIVE DATE.
14 The provisions of this title shall be effective for 10
15 years beginning on the date of the enactment of this Act.
16 The provisions of this title shall apply to any copy of any
17 film, including those copies of films selected for inclusion
18 in the National Film Registry under the National Film
19 Preservation Act of 1988 and the National Film Preserva-
20 tion Act of 1992, except that any film so selected under
21 either Act shall be deemed to have been selected for the
22 National Film Registry under this title.
23 SEC. 114. REPEAL.
24 The National Film Preservation Act of 1992 (2
25 U.S.C. 179 and following) is repealed.
•HR 1734 IH
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16
1 TITLE II— THE NATIONAL FILM
2 PRESERVATION FOUNDATION
3 ACT
4 SEC. 201. SHORT TITLE.
5 This title may be cited as the "National Film Preser-
6 vation Foundation Act".
7 SEC. 202. ESTABLISHMENT AND PURPOSE OF FOUNDATION.
8 (a) Establishment. — There is established the Na-
9 tional Film Preservation Foundation (hereafter in this
10 title referred to as the "Foundation"). The Foundation
11 is a charitable and nonprofit corporation and is not an
12 agency or establishment of the United States.
13 (b) Purposes. — The purposes of the Foundation
14 are —
15 (1) to encourage, accept, and administer private
16 gifts to promote and ensure the preservation and
17 public accessibility of the nation's film heritage held
18 at the Library of Congress and other public and
19 non-profit archives throughout the United States;
20 (2) to further the goals of the Library of Con-
21 gress and the National Film Preservation Board in
22 connection vdth their activities under the National
23 Film Preservation Act; and
24 (3) to undertake and conduct other activities,
25 alone or in cooperation with other film related insti-
•HR 1734 IH
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17
1 tutions and organizations, as will further the preser-
2 vation and public accessibility of films made in the
3 United States, particularly those not protected by
4 private interests, for the benefit of present and fu-
5 ture generations of Americans.
6 SEC. 203. BOARD OF DIRECTORS OF THE FOUNDATION.
7 (a) Establishment and Membership. — The
8 Foundation shall have a governing Board of Directors
9 (hereafter in this title referred to as the "Board"), which
10 shall consist of 9 Directors, each of whom shall be a Unit-
1 1 ed States citizen and at least 6 of whom must be knowl-
12 edgeable or experienced in film production, distribution,
13 preservation or restoration, including 2 who shall be sit-
14 ting members of the National Film Preservation Board.
15 These 6 members of the Board shall, to the extent prac-
16 ticable, represent diverse points of views from the film
17 community, including motion picture producers, creative
18 artists, nonprofit and public archivists, historians, film
19 critics, theater owners, and laboratory and university per-
20 sonnel. The Librarian of Congress (hereafter in this title
21 referred to as the "Librarian") shall be an ex officio non-
22 voting member of the Board. Appointment to the Board
23 shall not constitute emplojTnent by, or the holding of an
24 office of, the United States for the purpose of any Federal
25 law.
•HR li94 IH'
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18
1 (b) Appointment and Terms. — ^Within 90 days
2 after the date of the enactment of this Act, the Librarian
3 shall appoint the Directors of the Board. Each Director
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O
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49
Mr. MOORHEAD. This morning, the ranking minority member of
the full committee, Mr. Conyers, is on his way. I left him just a
few minutes ago. And he will have, I am sure, an opening state-
ment. But in the meanwhile, our good friend, Howard Berman, who
represents a district very much involved in the film industry, just
to the west of my district, is here this morning and I am sure he
has an opening statement.
Mr. Berman. Well, it is true I represent a district which has a
lot of people that work in the film industry and in the entertain-
ment industry generally. And the only thing I don't have is an
opening statement. But I do appreciate the hearing on these impor-
tant issues.
We have been talking about a lot of them for a long time. And
it is also very nice to have a hearing so close to home. And so I
thank you, Mr. Chairman, for scheduling the hearing. And I will
be active in the question periods, but I don't have anjd^hing particu-
larly to add right now.
Mr. MoORHEAD. Another member that is here, and actually the
first member that arrived here, was Xavier Becerra, who rep-
resents the district just to the south of us here. He only lives 3
miles from this courthouse.
Mr. Becerra. Mr. Chairman, I am pleased that you scheduled
the hearing 3 miles from my house. It is a lot better than schedul-
ing them 2,500 miles from my house. And I will just associate my-
self with all the remarks made by my colleague, Mr. Berman, and
leave my opening statement as that.
Mr. MoORHEAD. This morning, we have a very distinguished
panel before us. Our first witness will be Mr. Jack Valenti, who is
the president of the Motion Picture Association of America. I have
had the pleasure of working with him on many occasions.
Mr. Valenti is a graduate of the University of Houston and Har-
vard Business School. He cofounded the advertising and political
consulting agency of Weekly & Valenti. He served as Special As-
sistant to the President in Lyndon Johnson's White House and be-
came the third president and CEO of the MPAA in 1966.
Since that time, Mr. Valenti has presided over many changes in
the film industry and has authored numerous books and essays.
We welcome Mr. Valenti.
I am going to introduce the other three, and then I will have you
come on first.
Our second witness will be Ms. Marilyn Bergman, who is the
president and chairman of the American Society of Composers Au-
thors and Publishers, or ASCAP.
Ms. Bergman is a three-time Academy Award winner, a two-time
Grammy Award winner, and a two-time Emmy Award winner; all
of those awards.
She was introduced into the Song Writers Hall of Fame in 1979.
She and her husband, Alan Bergman, are one of the most respected
song writing teams in music today. Ms. Bergman is a graduate of
New York's high school of music and art and of New York Univer-
sity.
In 1985, she became the first woman to be elected to the board
of directors of ASCAP. Ms. Bergman is a member of the executive
committee of the music branch of the Academy of Motion Pictures
50
Arts and Sciences and the board of directors of the National Acad-
emy of Song Writers and she has recently been appointed to the
U.S. Department of Commerce's Private Sector Advisory Council of
the National Information infrastructure. Welcome, Ms. Bergman.
Our third witness is Mr. Edward Richmond. He is currently the
curator of the UCLA Film and Television Archives. He is a grad-
uate of the University of Cincinnati and holds a master's in film
and television studies from Ohio State University.
Mr. Richmond worked his way up from laboratory assistant at
the archives to administrative assistant, assistant director, acting
director and finally curator. He is the president of the Association
of Movie Image Archivists and a member of the Archivist Advisory
Council for the Film Foundation. He also lectures and has written
several papers on film preservation. Welcome, Mr. Richmond.
Our fourth witness is Mr. Edward Murphy. Mr. Murphy is the
president and CEO of National Music Publishers' Association
[NMPA].
Prior to assuming his duties at NMPA, Mr. Murphy served as
President of the G. Shirmer, Inc., a large American music publish-
ing house. He serves on the advisory board of the International In-
tellectual Property Alliance and is a member of the International
Copyright Panel of the U.S. Advisory Committee on International
Intellectual Property.
He founded the International Cop3a'ight Coalition and is sec-
retary of the National Music Council. Welcome, Mr. Murphy.
We have written statements from our four witnesses, which I ask
unanimous consent to be made a part of the record. And I ask that
you all summarize your statements in 10 minutes or less.
I ask that the subcommittee hold their questions of all four wit-
nesses until they have completed their oral presentations.
We will begin with the testimony of Mr. Valenti.
STATEMENT OF JACK VALENTI, PRESIDENT AND CEO,
MOTION PICTURE ASSOCIATION OF AMERICA
Mr. Valenti. Thank you, Mr. Chairman. I think copyright term
extension has a very simple, but compelling enticement and that is
it is very much in the economic interests of the United States at
a time when the words, "surplus balance of trade," is seldom heard
in the corridors of Congress, when we are bleeding from trade defi-
cits, and at a time when our ability to compete in the international
marketplace is under assault.
Anything that can be done must be done, then, to amplify the
ability of American movies and television programs to keep alive
their marketing dexterity in other countries around the world.
Europe is already girding its economic loins. They have length-
ened their copyright term to 70 years plus life of the author. The
Europeans understand all too clearly what the marketplace is all
about. And I think in that kind of audiovisual landscape, the Unit-
ed States has to match Europe.
It can do so by extending the U.S. copyright term, which will put
our term span on the same level as the Europeans. Europeans have
life of the author plus 70 years. That means that we would have
under works for hire, 95 years as the term extension.
51
I want to give you four major reasons which command our atten-
tion and which certify, I think, the need for copyright term exten-
sion.
One, the Berne Convention has a minimum protection time span.
And that is Ufe of the author plus 50 years. But, under Berne, any
nation can add additional terms if they choose. But — and this is
the pivotal point that we have to understand — other Berne coun-
tries are obligated only to protect the minimum length that Berne
certifies, the life of the author plus 50. They are not required nor
would they guard any other country's works beyond what that
country puts down as its yardstick for term extension, which
means that when we go to Europe with 50 years — 70 years, that
is life of the author plus 50, or 70 years for works for hire, we
would be at a grave disadvantage, that our movies would be in the
public domain, whereas the European movies would be fully pro-
tected. That is one reason.
Two, the minute that American works go into public domain, in
Europe, our revenues that are brought back to this country as part
of our surplus balance of trade, which we provision in this country,
those revenues would be cut off and they would pass into other
hands, not U.S. producers.
Three, American creative works are the most popular, the most
patronized, the most sought after, not only in Europe, but all over
the world, which is why, and here I have said this over and over
again, and maybe about the 28th time somebody will recall what
I have said — and that is that the American movie, television pro-
fram and home video return to this country annually more than
4 billion a year in surplus balance of trade.
If you take all of the products in this country, made or grown,
manufactured, or those that leap from the brain pan of people like
Marilyn Bergman and others, everything can be matched, cloned,
or duplicated by any other country in the world. Argentine wheat
and Korean steel and Grerman automobiles and Japanese elec-
tronics.
But the one product which at this hour has never been dupli-
cated or matched by any other country in the world is the Amer-
ican movie. It is a trade prize beyond all imagination.
The case for copyright term extension, Mr. Chairman, I believe
is that simple. And I am so pleased that 10 of the members of your
subcommittee have already cosponsored and I hope that Ms.
Wheeler will pass along to Congressman Conyers all of these melo-
dious and triumphant phrases which I am uttering this morning
because he has not yet signed on as a cosponsor, and I need to per-
suade him.
What are the contrary views? If someone comes to me and tries
to persuade me, I want to know what the upside and the downsides
are. Some academics plead that the consumer is going to be bene-
fited if there are more public domain works because public domain
works would be cheaper, more readily available, and therefore be
consumer benefits.
What academics do not know or do not observe is that while an
American public domain work may be sold more cheaply to some-
one, in many exhibitors in many international markets, consumers
are not granted cheaper prices, either here or abroad. Not at all.
52
Why? The theater ticket price remains the same, no matter what
picture is showing. I do not know of any home video store that
gives you a discount nor do I know of any television station that
lowers its advertising rates because it happened to buy a program
more cheaply than did its competitors. That is a fact of life.
The academics also assert that when copyrighted works lose
their protection, they become more widely available to the public.
Again, what the academics do not know are the marketplace real-
isms which exist. Whatever work is not protected is a work that
nobody preserves. The quality of the print is soon degraded. And
there is no one around who is going to invest the money for en-
hancement. Why? Because there is no longer a financial incentive
to rehabilitate and preserve because it belongs to everybody and
therefore it belongs to nobody.
A public domain work is an orphan. No question about that. No
one is responsible for its future life. But everyone exploits its use
until that time certain when it becomes soiled and haggard and
barren of all of its former virtues. Who then — who then will invest
the funds required to renovate it and to nourish its future when
nobody owns it?
How does the consumer benefit from that scenario? The answer
is the consumer has no benefit. What the academics offer in numb-
ing detail are the arcane drudgeries of graphs and charts and ar-
ithmetical lines that cross a page. But the fact is that all of these
scholarly works are separated from the real world in which realism
exists.
And that brings me now to the fourth reason why it is necessary
to extend copyright terms. That Congress can, without reaching
into the pockets of any consumer, magnify the revenue curve of
copyright owners, which can be delivered back to this country and
thereby help, maybe modestly, but nonetheless help in the reduc-
tion of our trade deficit, as well as encouraging the preservation
and nourishment of what I think is one of America's great, glitter-
ing trade prizes, the American movie.
In the global intellectual property world of tomorrow, I think
competition is going to reach a ferocity unimagined today. And you
have to understand what intellectual property means to this coun-
try. The core copyright industries represent intellectual property,
movies, home video, books, musical recordings and computer soft-
ware.
Together they comprise about 4 percent of our gross domestic
product. About $240 billion. They collect some $45 billion in reve-
nues abroad. Their employment rate is growing four times faster
than the national economy.
If ever there was a prize that ought to be protected by the Con-
gress of the United States and by this administration, it is this
wonderful world of intellectual property in which we are superior
and dominant throughout the world.
So I say the Congress ought to equip us with the kind of intellec-
tual property protection we need by extending this copyright term.
Otherwise, competition in Europe particularly is going to get
skewed against us.
Which brings me now to the singular premise on which this, I
hope, passionate plea is based and that is what we are asking you
53
to do is very much and confirmably so in the long-range economic
interest of the United States.
And now, since Congressman Conyers has arrived, may I do this
all over again, please?
[The prepared statement of Mr. Valenti follows:]
Prepared Statement of Jack Valenti, President and CEO, Motion Picture
Association of America
Copyright term extension has a simple but compelling
enticem.ent: it is very much in America's economic interests.
At a time when our marketplace is besieged by cin
avalanche of imports, at a hme when the phrase 'surplus balance
of trade' is seldom heard in the corridors of Congress, at a time
when our ability to compete in international markets is under
assault, whatever can be done ought to be done to amplify
America's export dexterity in tlie global arena .
Europe is girding its economic loins. One small piece of
that call to arms is that the European Union has lengthened
copyright term to 70 years plus life of the author. Europe's
planners understand all too clearly how the market works. In
that kind of audiovisual locale, the U.S. has to match Europe. It
can do so by extending U.S. copyright term to put our term, span
at the same level as Europe's - 70 years PLUS life of the author or
95 years for works made for hire.
There are Four major reasons which command our
attention and certify tlie need for copyright term extension:
First, while the Berne Convention hcis a minimum term
(life of the author plus fifty) any nation can provide longer terms.
But, and this is pivotal, a nation does not have to prptect other
countries' works beyond what those countries provide for their
works. To put it plainly, Europe would not guard American
works beyond the American term limit, whereas Eiuropean works
would have longer security cmd energy in the marketplace.
Second, this mecins that American works would go into
public domain in Europe, thereby cutting off revenues for
American copyright owners, and transferring those revenues into
European hands, and elsewhere.
54
2 of 3
Third, American creative works are the most globally
popular, the most patronized, and the most sought after by
exhibitors in theaters, television and home video all over the
world. Which is why U.S. movies /TV programs and home video
are America's most wanted exports, delivering back to our
country more them $4 Billion in SURPLUS balance of trade.
Intellectual property, consisting of the core copyright industries,
movies, TV programs, home video, books, musical recordings and
computer software comprise almost 4% of the nation's Gross
Domestic Product, gather in some $45 Billion in revenues abroad,
and has grown its employment at a rate four times faster than the
annual rate of growth of the overall U.S. economy. Whatever
shrinks that massive asset is NOT in America's best interests.
The case for copyright term extension is tliat simple.
What are the contrary views?
Some academics plead that the consumer would be
benefited because more public domain works would find wider
circulation at cheaper prices. What academics do not observe or
do not know is that while an American public domain work may
be SOLD cheaper to exhibitors in many international markets,
consumers <ire NOT grcmted cheaper prices. Npt at all. The
theater ticket remains the same price. TV station, home video
stores give no discounts to the public. Advertising rates do not
come down.
Academics also assert that when copyrighted works lose
their protection, they become more widely available to the public.
Again what academics do not observe or do not know is a simple
marketplace truth: Whatever work is not protected is a work that
55
3 of 3
no one preserves. The quality of the print is soon degraded.
There is no one who will invest the funds for enhancement
because there is no longer an incentive to rehabilitate and
preserve. A public domain work is an orphan. No one is
responsible for its life. But everyone exploits its use, until that
time certain when it becomes soiled and haggard, barren of its
previous virtues. Who, tlien, will invest the funds to renovate
and nourish its future life when no one owns it? How does the
consumer benefit from that scenario? The answer is, there is no
benefit. What academics offer in numbing detail are the arcane
drudgeries of graphs, charts, and aritlimetical lines drawn across
a page, all of which dwell in isolation, separated from the
realisms of the marketplace.
And that brings us to the Fourth reason why it is
necessary to extend copyright term limits.
The Congress can, without reaching into the pockets of
the average consumer, magnify the revenue reach of copyright
owners, and thereby help, perhaps modestly, but help
nonetheless, in the reduction of our trade deficit, as well as
encouraging the preservation and nourishment of this nation's
great, unmatchable trade prize, the American movie. In the
global intellectual property world of tomorrow, competition will
reach a ferocity unimagined today. The Congress must equip
American owners of intellectual property with a full measure of
protection, else competition, in Europe peirticularly, becomes
skewed and U.S. copyright owners are reduced in their
effectiveness.
Which returns us to the singular premise on which this
plea is based: ft is in the economic best interests of this country to
extend copyright term limits. Now.
56
Mr. CONYERS. I may have heard it before.
Mr. MOORHEAD. He wants you as a cosponsor on the bill.
Mr. Valenti. I said, Mr. Chairman, if I may, Mr. Chairman, 1
more minute. I said that I wanted you here, Congressman Conyers,
because you are one of the three or four members of this sub-
committee who hasn't cosponsored this copyright term extension
and I felt like you would be susceptible to some of my passionate
pleas.
Mr. Conyers. I always have been.
Mr. Valenti. Anyway, thank you, Mr. Chairman. I am grateful
for the time.
Mr. MooRHEAD. Thank you.
Our next witness is Marilyn Bergman and many of you have
heard, "The Way We Were," and many of the other wonderful, won-
derful songs that she has written. We are very fortunate to have
you here today.
STATEMENT OF MARILYN BERGMAN, SONGWRITER, PRESI-
DENT AND CHAIRMAN OF THE BOARD, AMERICAN SOCIETY
OF COMPOSERS, AUTHORS AND PUBLISHERS
Ms. Bergman. Thank you. Grood morning, again, Mr. Chairman.
And thank you for holding these hearings about 12 miles from my
home. You beat me by 8 miles.
Mr. Becerra. Close enough.
Ms. Bergman. Good morning, Mr. Chairman, and members of
the subcommittee, my name is Marilyn Bergman. I am a song writ-
er. I am also president and chairman of the board of ASCAP. I very
much appreciate the opportunity to express our strong support for
H.R. 989, the Copyright Term Extension Act of 1995.
At the risk of repeating some of the eloquent words of our chair-
man, and certainly the passionate words of Mr. Valenti, for the
record I have to make my statement.
I wish to start, Mr. Chairman, by applauding your recognition of
the importance of extending our copyright term. You have been a
leader on this important question, as on so many others vital to
American creators and owners of cop)n-ight. We wish to express our
deepest thanks for your support and for that of the many cospon-
sors of this legislation from the subcommittee. Representatives
Becerra, Berman, Bono, Coble, Gallegly, Gekas, Goodlatte, Nadler,
and Schroeder.
As you know, ASCAP exists to license the nondramatic public
performances of copyrighted music written and owned by our more
than 65,000 composer, lyricist, and music publisher members. We
license music users and monitor, collect, and distribute royalties to
our members. These royalties are the largest single source of in-
come to song writers and that is what enables us to work in our
chosen field and create the music that enriches the culture and the
economy of our country.
ASCAP, together with our sister societies BMI and SESAC, are
among the many interested parties which have joined together to
form the coalition of creators and copyright owners to support your
bill. The coalition will submit a written statement.
57
My testimony today will focus on why this legislation is vital for
America's music, and I will do so from my personal perspective as
both ASCAP's chairman and as a working lyricist.
H.R. 989 proposes to extend the terms of all copyrights in the
United States by 20 years. There are two overriding reasons why
that is an important idea. The first is economic. Term extension is
necessary as a matter of international trade. It is necessary if our
intellectual property, which does so much for the American econ-
omy, is to be protected internationally.
The second is that it is the right thing to do. The United States
should do all it can to encourage creativity and to protect intellec-
tual property. Extension of copyright term will serve to encourage
the tens of thousands of music creators who struggle to earn a liv-
ing in this highly competitive business, and for whom the prospect
of leaving an asset of their own making to their children and
grandchildren is a powerful incentive.
Copyright of all forms of property transcends both national and
international boundaries. In recent years, we have seen a true
internationalization of the demand for and use of copyrighted
works. Music, among a wealth of other copyrighted works, flows
freely among and between nations.
The technological developments which have resulted in the infor-
mation superhighway, the national and global information infra-
structures, will result in even greater ease of access to and com-
merce in copyrights and copyrighted music on a worldwide basis.
The creativity the world wants, as Mr. Valenti so passionately
put it, is overwhelmingly the creativity of our country. America's
music is what the world wants to hear and our music is far more
popular overseas than foreign music is here. That means that we
have a very positive balance of trade in music, as in all other copy-
righted works.
Last year, ASCAP sent $27 million overseas for performance of
foreign music here, but we received $103 million for the perform-
ance of our music abroad. If we were to count the amounts received
by foreign subsidiaries of American music publishers for foreign
performances the amount would be much greater.
As you know, the European Union has adopted a directive to go
into effect 1 month from today, which will make the copyright term
throughout the E.U. 20 years longer than it is in the United States.
But because of the rule of the shorter term, those European coun-
tries will not protect American works for additional 20 years unless
our copjTight term is also lengthened by 20 years.
I and my American colleagues will have less protection than our
European counterparts. And what is worse, we will lose, our coun-
try will lose, the 20 years of royalties which we would otherwise
earn if our country's copyright term was equal to that of the E.U.'s.
ASCAP has calculated that the loss of ASCAP performing rights
revenues earned in Europe alone by American writers and music
publishers for the oldest 20 years of copyrighted music would
amount to about $14 million annually.
When we consider that performing rights are half the total in-
come writers and publishers receive, we could estimate that in
music alone term extension would mean a trade surplus of about
58
$25 million annually; money which would go directly to American
creators, businesses, and the American economy's benefit.
The loss of these revenues would not be fair to those of us who
work so hard to create America's music, to those who invest consid-
erable sums to bring that music to the public, and to our fellow citi-
zens who rely on a strong U.S. economy.
Mr. Chairman, if nothing else, it comes down to this: We can ob-
tain 20 years of continued trade surplus for American creativity in
the European market at no cost to ourselves simply by enacting
your legislation. If we do not do so and do not do so now, over the
next 2 years, the following great American songs and many others
will fall into the public domain. The revenues they and other copy-
righted works would generate in Europe for another 20 years,
which would serve the economic good of our country, will simply
vanish. Let me mention a few.
Appropriately, "California, Here I Come," "Toot Toot Tootsie
Good-Bye," "Rhapsody in Blue," "Tea for Two," "It Had To Be You,"
"The Man I Love," "I Will See You in My Dreams," "Lady be Good,"
"Ain't We Got Fun," "All By Myself," "April Showers," "Avalon,"
"I'll Be With You in Apple Blossom Time," "I'm Just Wild About
Harry," "Look For The Silver Lining," "Make Believe," "Say It With
Music," and "Secondhand Rose," only to mention a few.
Logic and our country's economic self-interest dictate that we ex-
tend our copyright term to take advantage of this opportunity for
extended protection in the European market. We can do so by en-
acting H.R. 989. Mr. Chairman, thank you for introducing this vital
legislation and for this opportunity to voice our strong support for
it.
[The prepared statement of Ms. Bergman follows:]
59
Prepared Statement of Marilyn Bergman, Songwriter, President and
Chairman of the Board, American Society of Composers, Authors and
Publishers
Good morning, Chairman Moorhead and members of the
Subcommittee. My name is Marilyn Bergman. I am a songwriter. I
am also President and Chairman of the Board of ASCAP. I very
much appreciate the opportunity to express our strong support for
H.R. 989, the Copyright Term Extension Act of 1995.
I wish to start, Mr. Chairman, by applauding your
recognition of the importance of extending our copyright term.
You have been a leader on this important question, as on so many
others vital to American creators and owners of copyright. We
wish to express our deepest thanks for your support, and for that
of the many co-sponsors of this legislation from the
Subcommittee, Representatives Becerra, Berman, Bono, Coble,
Gallegly, Gekas, Goodlatte, Nadler, and Schroeder.
As you know, ASCAP exists to license the nondramatic
public performances of copyrighted music written and owned by our
more than 65,000 composer, lyricist and music publisher members.
We license music users, and monitor, collect and distribute
royalties to our members. These royalties are the largest single
source of income to songwriters, and that is what enables us to
work in our chosen field and create the music that so enriches
the culture, and the economy, of our country.
ASCAP, together with our sister societies BMI and
60
SESAC, are among the many interested parties which have joined
together to form the Coalition of Creators and Copyright Owners,
to support your bill. The Coalition has submitted a written
statement. My testimony today will focus on why this legislation
is vital for America's music, and I will do from my personal
perspective as both ASCAP's head and as a working lyricist.
H.R. 989 proposes to extend the terms of all copyrights
in the United States by 20 years. There are two overriding
reasons why that is a good idea. The first is economic -- term
extension is necessary as a matter of international trade. It is
necessary if our intellectual property, which does so much for
the American economy, is to be protected internationally. The
second is that it is the right thing to do, for the United States
should do all it can to encourage creativity. Extension of
copyright term will serve to encourage the tens of thousands of
music creators who struggle to earn a living in this highly
competitive business, and for whom the prospect of leaving an
asset of their own making to their children and grandchildren is
a powerful incentive.
Copyright, of all forms of property, transcends both
national and international boundaries. In recent years, we have
seen a true internationalization of the demand for and use of
copyrighted works. Music, among a wealth of other copyrighted
works, flows freely among and between nations. The technological
developments which have resulted in the information superhighway
— the National and Global Information Infrastructures -- will
61
result in even greater ease of access to, and commerce in,
copyrights, and copyrighted music, on a world-wide basis.
And the creativity the world wants is overwhelmingly
the creativity of our country. United States culture sets the
standard for the world. America's music is what the world wants
to hear, and our music is far more popular overseas than foreign
music is here. That means that we have a very positive balance
of trade in music, as in all copyrighted works. Last year, ASCAP
alone sent $27 million overseas for performance of foreign music
here, but we received $103 million for the performance of our
music abroad. If we were to count the amounts received by
foreign subpublishers -- foreign subsidiaries of American music
publishers — for foreign performances, the amount would be much
greater. That is money that went straight into the pockets of
American writers and publishers, supporting American workers and
American businesses.
As you know, the European Union has adopted a
Directive, to go into effect one month from today, which will
make the copyright term throughout the EU 20 years longer than it
is in the United States. But because of the "rule of the shorter
term," those European countries will not protect American works
for those additional 20 years unless our copyright term is also
lengthened by 20 years. I and my American colleagues will have
less protection than our European counterparts. What's worse, we
will lose — our country will lose — the 20 years of royalties
which we would otherwise earn if our country's copyright term was
9:i.0R7 QR _ !i
62
equal to that of the EU's. ASCAP has calculated that the loss of
ASCAP performing rights revenues earned in Europe alone by
American writers and music publishers for the oldest 20 years of
copyrighted music — the revenues that would be lost to our
country — would amount to about $14 million annually.
The loss of these foreign revenues would not be fair to
these of us who work so hard to create America's music, to those
who invest considerable sums to bring that music to the public,
or to our fellow citizens who rely on a strong United States
economy. Our country needs every penny of trade surplus we can
get, and enactment of H.R. 989 will ensure that we do not lose a
significant portion of the trade surplus in copyrights which we
receive from Europe.
Mr. Chairman, if nothing else, it comes down to this:
we can obtain 20 years of continued trade surplus for American
creativity in the European market at no cost to ourselves, simply
by enacting your legislation. If we do not do so, and do not do
so now, over the next two years the following great American
songs, and many others, will fall into the public domain; the
revenues they and other copyrighted works would generate in
Europe for another 2 0 years, which would serve the economic good
of our country, will simply vanish:
AIN'T WE GOT FUN
ALL BY MYSELF
APRIL SHOWERS
AVALON
I'LL BE WITH YOU IN APPLE BLOSSOM TIME
I'M JUST WILD ABOUT HARRY
LOOK FOR THE SILVER LINING
MAKE BELIEVE
- 4 -
63
SAY IT WITH MUSIC
SECOND HAND ROSE
Logic, and our country's economic self-interest, dictate that we
extend our copyright term to take advantage of this opportunity
for extended protection in the European market. Let's do so by
enacting H.R. 989.
Mr. Chairman, thank you for introducing this vital
legislation, and for this opportunity to voice our strong support
for H.R. 989.
64
Mr. MOORHEAD. Thank you. The next witness is Mr. Richmond.
STATEMENT OF EDWARD RICHMOND, PRESffiENT,
ASSOCIATION OF MOVING IMAGE ARCHIVISTS
Mr. Richmond. Thank you, Chairman Moorhead and members of
the subcommittee. I am going to change the pace and talk about
H.R. 1734, the National Film Preservation Act of 1995. And I want
to thank you for giving me this opportunity to speak in support of
it.
I am here today representing the Association of Moving Image
Archivists. AMIA is a professional association established in 1991
to provide a means for cooperation among individuals concerned
with preservation and use of moving image materials. It currently
represents nearly 250 professional archivists working at more than
100 institutions in both the public and private sectors.
In commenting today, I will confine my remarks to title II of the
proposed legislation, which seeks to establish a federally chartered
foundation dedicated to the preservation of America's film heritage.
I would like to say, however, that I also fully support title I,
which seeks to reauthorize the National Film Preservation Board.
The Film Board is an indispensable element in ensuring that the
progress made to date in dealing with the real crisis in film preser-
vation can be continued and expanded.
In 1992 Congress asked the Film Board to prepare a comprehen-
sive report on the nationwide efforts to preserve American motion
pictures. The Board, with the invaluable assistance of the Library
of Congress, accomplished this task in two stages.
First, it undertook an extensive 1-year study to determine the
current state of film preservation throughout the United States.
This study entitled, "Film Preservation 1993," persuasively dem-
onstrated that America's film heritage is at serious risk.
And Chairman Moorhead has already mentioned some of the
findings of this study. Fewer than 20 percent of feature films from
the 1920's survive in complete form. Of the films made from 1895
to 1950, less than half survive. Films made after 1950 continued
to be endangered by many threats including color fading, the so-
called vinegar syndrome, and sound track deterioration. And per-
haps most alarmingly, funding for film preservation, which has
never been adequate, has fallen to less than half its 1980 level
when adjusted for inflation.
As a second stage the Board oversaw the creation of a national
plan to address these issues. The process of arriving at this plan
was unprecedented. For the first time archivists, educators,
filmmakers, technical specialists, entertainment industry execu-
tives and others came together to find solutions to film preserva-
tion problems.
The resulting plan entitled, "Redefining Film Preservation," rep-
resents the consensus, which emerged from this process. And,
Chairman Moorhead, I would like to ask if a copy of the plan could
be included as part of my written statement.
Mr. Moorhead. So ordered.
[See appendix, p. 423.]
Mr. Richmond. The centerpiece of this plan is the creation of a
federally chartered foundation. Working with the film preservation
65
community, the foundation will seek to raise private gifts and will
be eligible to match those gifts with a limited amount of Federal
funds. The foundation in turn will establish grant programs to
make its assets available to nonprofit film-preserving institutions
throughout the country.
The foundation's primary role will be to help preserve and make
accessible those films which are held in the public trust by non-
profit institutions and which simply will not survive without public
intervention. These films, sometimes referred to as orphan films,
constitute a very large and indispensable portion of our film herit-
age.
They include newsreels, documentaries and actuality footage,
independent and avant-garde films, socially significant amateur
footage, regional materials of historical interest, films that have
fallen into the public domain, and other films of cultural and edu-
cational value whose cop3n'ight owners are unable or unwilling to
provide long-term preservation.
Important collections of such films exist in each of the 50 States.
They can be found in local archives, museums, historical societies,
libraries, and universities.
And in most cases, the institutions holding these collections can-
not afford on their own adequately to preserve, store, or make them
accessible to the public.
In addition to my work with AMIA, I am also the curator of the
UCLA Film and Television Archives. Turning to my own institution
as an example, UCLA holds many collections of films which are
unique or represent the best remaining copies. Our largest collec-
tion consists of more than 5,000 hours of newsreel footage from the
19 10 through the early 1970's, much of which has never been seen
by the public.
This collection contains footage from all over the country and all
over the world, but since these hearings are being held in Pasa-
dena, I checked to see what footage existed on this area. We have
coverage of the Tournament of Roses parade and Rose Bowl games
dating back to the 1930's. We have films of many events which oc-
curred over the years at the California Institute of Technology and
the Jet Propulsion Laboratory.
We have stories documenting an automobile race through the
streets of Pasadena in 1936, new techniques being used by the
Pasadena police to combat crime in 1938, and a rally by the Wom-
en's Christian Temperance Union in Pasadena in 1947 and dozens
more.
The archive at UCLA is probably in a better position than many.
We are partially funded by the University of California. And we
have a good record of attracting outside support. Despite this suc-
cess, however, we need help. Without it, we cannot properly store
all of our materials. We cannot provide students and the public
with as much access to our collections as we should and we cannot
preserve all or even most of our films, including the Pasadena foot-
age I just mentioned.
And we are not alone. Other major archives such as the Library
of Congress, the Museum of Modern Art, George Eastman House
as well as hundreds of important regional local and specialized ar-
chives are all facing similar problems. Each year the Nation's film
66
archives are losing unique footage, historically and culturally valu-
able footage which deteriorates beyond saving and is gone forever.
What we believe is needed urgently is the new approach rep-
resented by the proposed National Film Preservation Foundation.
Unlike the isolated efforts of individual archives, the foundation
will have the national base to maximize private sector fundraising,
foster public-private partnerships around preservation initiatives,
assure the most efficient use of every preservation dollar and help
address problems that are beyond the scope of any one institution.
For these reasons, I believe passage of H.R. 1734, including title
II, is vital to ensuring preservation of and access to America's film
heritage and I urge you to give it your support. Thank you.
[The prepared statement of Mr. Richmond follows:]
67
Prepared Statement of Edward Richmond, President, Association of Moving
Image Archivists
On behalf of the Association of Moving Image Archivists (AMIA), I am writing in
support of H.R. 1734, the National Film Preservation Act of 1995 (Title I) and the
National Film Preservation Foundation Act (Title II). AMIA is a professional
association established to provide a means for cooperation among individuals concerned
with the preservation and use of moving image materials. AMIA currently represents
nearly 250 professional archivists working at more than 100 institutions in both the public
and private sectors. Its members constitute most of the working professionals in the film
archive field.
I believe strongly that passage of H.R. 1734 is vital to insuring preservation of and
access to America's film heritage. For the purpose of this statement. 1 will confine my
remarks to Title II, which establishes a federally chartered foundation dedicated to the
preservation of American mouon pictures. I would like to say, however, that I also
strongly support Title I, which reauthonzes the National Film Preservation Board. If
Congress had not established the Film Board, the nation's film preservation crisis may
Association of Vlovinu iniu)!t; ArchivisLs>./o Naiional Center for Film and Video Preservation. The American Film Institute
IM) Box27Wy • :;'21 North Western Avenue • Los Angeles. California 90027
68
Page two
never have been addressed in a cooperative and comprehensive manner, and the Board's
reauthorization is an indispensable element in assuring that the progress made to date
can be continued and expanded.
I. The National Film Preservation Report .
I would like to begin by providing a very brief overview of the process which has
resulted in the proposal to create a national film preservation foundation.
Congress originally established the National Film Preservation Board in 1988.
When the Board was reauthorized in 1992. Congress added to its duties the task of
preparing a comprehensive report on the nationwide efforts to preserve .American
motion pictures. The Board accomplished its assignment in two stages:
STAGE ONE: the National Study. The Board undertook an extensive one year
study to determine the current state of film preservation throughout the United States.
This study, which was published in June of 1993 under the title FILM PRESERVATION
1993, persuasively demonstrated that Amenca's film heritage is at senous risk. Among
its alarming findings were the following:
* Fewer than 20% of feature films from the 1920s survive in complete form; for
features from the 1910s, the survival rate falls to 10%. Of films made from 1895-
1950, less than half survive.
* Films made after 1950 face several serious threats to their survival, including
"color fading," the so-called "vinegar syndrome," and soundtrack deterioration.
* Many American films can be found only in foreign archives.
* Funding for film preservation, which has never been adequate, has fallen to
considerably less than half its 1980 level, when adjusted for inflation.
69
Page three
STAGE TWO : the National Plan . The Board next oversaw the creation of a
national plan to address the problems identified in FILM PRESERVATION 1993. The
process of arriving at this plan was unprecedented and historic in nature. For the first
time, archivists, educators, filmmakers, technical specialists, and entertainment industry
executives all came together to discuss, negotiate, occasionally to argue, but ultimately to
find solutions to film preservation problems. More than thirty people directly
participated as members of five task forces and committees, which met in person or by
conference call more than twenty times over a period of six months. Through the task
force and committee members, the discussions reached out to hundreds of others
working in all the professions and disciplines mentioned above.
The resulting plan, which was published in August of 1994 under the title
REDEFINING FILM PRESERVATION, represents the consensus which emerged from
this process. 1 think I am safe in saying that it is widely supported by all elements of the
film community involved with preservation.
The hallmark of the plan is the recognition that the preservation of America's
film heritage requires a comprehensive, meaningful and ongoing partnership among
public and non-profit archives, the film industry, the creative community, the educational
community, other segments of the private sector, and the government.
II. The National Film Preservation Foundation .
In all, the national plan outlines thirty-one specific recommendations; among
these are proposals for:
* Redesigning preservation policies to underscore the importance of low-
temperature, low-humidity storage in retarding film deterioration.
70
Page four
• Increasing the availability of films for education, research and public exhibition.
• Developing public-private partnerships to restore selected films, share
preservation information, and repatriate "lost" American films from foreign
archives.
However, the key proposal which serves as the necessary centerpiece for the
entire plan is to create a new federally-chartered foundation which would raise funds for
two related purposes: (1) to promote the preservation of and public access to America's
film heritage, concentrating on those films not preserved by commercial interests, and (2)
to further the implementation of other components of the national plan and related
activities.
The basic concept of the foundation is simple. It is envisioned as a 501(c)(3)
nonprofit organization in the District of Columbia. Working in close coordination with
the film preservation community, it will seek to raise private gifts (both cash donations
and in-kind contributions) and will be eligible to match those gifts with a limited amount
of federal funds.
The foundation in turn will establish grant programs to make its assets available
to non-profit film preserving institutions throughout the country. Grants will be awarded
only for specific projects, and no foundation funds will be used to cover administrative
overhead on any project. The types of projects eligible for funding might include: grants
to fund the archival preservation and restoration of film collections; grants to help
establish regional climate controlled storage facilities to house endangered collections
from many institutions; grants to make collections available to the public through
cataloging, the striking of access and exhibition copies, and even the digitizing of
collections of special educational interest to facilitate their access over the Internet.
71
Page five
III. The Role of the National Foundation .
Let me be clear about one point. I do not think anyone expects or wants the
foundation to fund the preservation of Hollywood studio films, or any films controlled by
copyright owners who are capable and willing to preserve them. Such films should be
and, in most cases, are being preserved by their owners, either through internal company
preservation programs or through collaborative restoration programs established between
for-profit companies and non-profit archives.
Rather, the foundation's role will be to help preserve those films which are held
in the public trust by non-profit institutions and which simply will not survive without
public intervention. These films - sometimes referred to as "orphan" films - constitute a
very large and indispensable portion of America's film heritage. They include newsreels,
documentaries and actuality footage, independent and avant-garde films, socially
significant amateur footage, regional materials of historical interest, films that have fallen
into the public domain, and other films of cultural and educational value whose copyright
owners are unable or unwilling to provide long-term preservation.
Important collections of such films exist in each of the fifty states. They can be
found in local archives, museums, historical societies, libraries, universities, and non-
profit associations. And in most cases, the institutions holding these collections cannot
afford on their own adequately to preserve them, store them, or make them accessible to
the public. This is the reality which film preserving institutions confront on a daily basis.
In addition to my work with AMI A, 1 am the Curator of the UCLA Film and
Television Archive. Turning to my own institution only as an example, the Archive at
UCLA holds many collections of films which are unique or which represent the best
72
Page six
remaining copies. Our largest such collection consists of more than 5,000 hours of
historical newsreel footage dating from the 1910s through the early 1970s, much of which
has never before been seen publicly. It is a virtual treasure trove for the study of the
twentieth century. The collection includes extensive footage on most major events in the
areas of American government, international relations, social and cultural developments,
as well as coverage of most major figures in the fields of politics, busmess, technology,
entertainment, and sports.
Since heanngs on H.R. 1734 are being held in Pasadena. I checked the newsreel
collection for footage on this area. We have extensive coverage of the Tournament of
Roses Parades and Rose Bowl Games daimg back at least to the early 1930s. We have
films of many events which occurred over the years at the California Institute of
Technology and the Jet Propulsion Laboratory. We also have stones documenting an
antique automobile race through the streets of Pasadena in 1936, new techniques being
used by the Pasadena police to combat cnme in 1938, a rally by the Women's Christian
Temperance Union in Pasadena in 1947. and dozens more.
Now, the Archive at UCLA is in a better position than many. We are partially
funded by the University of California, and our track record in attracting outside support
is probably above average. Despite this success, we cannot properly store all of our
materials: we cannot provide students, educators and the public with as much access to
our collections as we should; and we cannot hope to preserve all of our films, most of
our films, or even a substantial portion of our films -- not without help.
And UCLA is not alone. The same can be said, to greater or lesser degrees, of
most other archives and film preserving institutions throughout the country. Other major
73
Page seven
film archi\-es such as the Libran of Ccxigress. the Museum of Modem An. the
Intematioaal Museum of Photography and Film, as well as hundreds of important
regional. local and specialized archives are all dicing similar probiems.
Each v'ear the nation's film archives lose unique footage - historically and
culturally valuable fbocage \k-hich is then gone forever. .Mready in 1995. UCL.A has been
forced to dispose of almost 30.000 feet of f'vn because it deteriorated, in some cases
literally to dust, before «% could raise funds to preserve it .\nd the same situation, on
larger and smaller scales, is being repeated all ov-er the country, all the time.
X^Tiai is needed urgently is the ne* ap{Hoach represented by the proposed
national film preservation foundation. Unlike the isolated efforts of individual archives,
the foundation vnll have the necessary national base to: (a) maximize private sector
fimdraising. (b) foster public-pnvate partnerships around preservation initiatives, (c)
insure the most effective use of every preser%-aiion dollar, and (d) help address {nnblems
beyond the scope of any one institution.
For these reasons. I urge >ou to suppon H.R. 1734. itKluding Title n. Please give
the nation's film archives the national foundation we need to save America's film
heritage, for the benefit of the .American people.
74
Mr. MOORHEAD. Mr. Murphy.
STATEMENT OF EDWARD P. MURPHY, PRESffiENT AND CEO,
NATIONAL MUSIC PUBLISHERS' ASSOCIATION, INC.
Mr. Murphy. Good morning, Mr. Chairman and members of the
subcommittee. I am Edward P. Murphy, president and chief execu-
tive officer of the National Music PubHshers' Association, Inc.
[NMPA]. I am pleased to appear before you today to provide the
American music publishing community's views on H.R. 989, the
Cop3rright Term Extension Act of 1995.
NMPA represents more than 600 music publishers and NMPA's
subsidiary, the Harry Fox Agency, serves as a licensing agent for
more than 14,000 music publishers located in California, Ten-
nessee, New York, and throughout the United States.
Music publishers generally speaking are holders of copyright in
musical works. The publisher's role is to nurture the creativity of
song writers and composers through artistic, professional and eco-
nomic support. Following the creation of a musical work, the pub-
lisher functions as a promoter seeking recordings, performances
and other modes of distribution.
The publisher is the business side a partnership with music cre-
ators. He or she administers the copyright in the work and takes
steps to protect it from unauthorized exploitation, including acting
as an advocate, sometimes individually and sometimes through
NMPA, for strong cop3n*ight protection and enforcement throughout
the world.
The music publisher also serves as a counselor in the overall de-
velopment of the creator's career. For all of their contributions to
the creative process, the music publishers enjoy a close partnership
with their song writer and composer colleagues.
In light of the special role that the music publishers play in the
creative process, and because of the strong bonds between publish-
ers and songwriters and composers, NMPA is especially pleased to
voice its support for term extension. The trade arguments in sup-
port of term extension are overwhelmingly persuasive. More and
more the U.S. economy is supported by the production of intellec-
tual property by American creators and its dissemination to an
eager world market.
According to the economic study released by the International In-
tellectual Property Alliance in 1993, the American copyright indus-
tries accounted for nearly 4 percent of the gross domestic product
and produced nearly $46 billion in foreign sales.
The benefits to the United States of maintaining a leadership po-
sition in advancing strong international copyright norms are self-
evident. In numerous bilateral negotiations, in the North American
Free Trade Agreement and in the Uruguay Round Agreement and
on the trade-related aspects of intellectual property rights, United
States' persistence yielded improved levels of protection.
As the world's leading provider of copyright content, the United
States charted the way for recognition of exclusive rental rights in
certain works, for copyright protection for software, and for an ade-
quate term of protection for sound recordings in countries that do
not protect those works under copyright.
75
On the issue of duration of protection for copyrighted works in
general, however, the European Union is pointing the way, and
NMPA fears that way will be a dark and hostile one for American
creators and copyright owners. The E.U. directive invokes reciproc-
ity through the Berne Convention rule of the shorter term. Works
of U.S. origin will fall into the public domain in the countries of
the European Union at the expiration of their life plus 50 term
while those same countries will grant works of their own authors
an additional 20 years of protection.
The only way U.S. works can qualify for the extended term in
Europe is for our law to grant an equal extension. In other words,
for H.R. 989 to become law.
As this subcommittee considers H.R. 989 and issue of term ex-
tension from a domestic policy standpoint, however, NMPA urges
you to consider addressing an additional point not now covered by
the bill; the issue of duration of transfers of rights.
U.S. copyright law, back to the very first copyright act passed in
1790, has struck a balance between interests of individual authors
who create works and the publishers who foster the goals of copy-
right by promoting the wide dissemination of those works to the
public. In various acts up to and including the 1909 Copyright Act,
this was accomplished by a split-term of protection.
The 1909 act, for example, divided 56 years of copyright protec-
tion into two 28-year terms, often referred to as the original and
renewal terms. The theory behind this approach in part was to give
the author a second opportunity at the beginning of the second or
renewal term, to renegotiate a transfer of rights that may have
proven to be less than satisfactory. The author was given a "second
bite at the apple" that could take into account the demonstrated
value of the works in the marketplace.
With the evenly divided bifurcated term, each time the duration
of the copyright was extended to the benefit of authors, publishers
who made the initial investment in bringing the work to the public
received an extended opportunity to recover their investment
through a longer original term of protection.
Congress, with an eye toward the U.S. accession to the Berne
Convention, determined in the 1976 Copyright Act to switch from
a fixed 56-year term of protection to the Berne's minimum of life
of the author plus 50 years.
In the years of congressional review that preceded the major
statutory rewrite, the question of how to maintain a balance be-
tween creators' and publishers' interests achieved by the split copy-
right term was thoroughly debated.
The notion of incorporating a statutory cap on the duration of
copyright transfers was eventually agreed upon as the appropriate
approach. When it was suggested that the cap be set at 25 years,
Julian Abeles, then head of the organization had later became
NMPA, pointed out that a 25-year limitation would make publish-
ers 3 years worse off than they had been under the 1909 act's 28-
year original term.
Before the panel of experts convened by the Copyright Office, Mr.
Abeles said:
Today there are so few songs of any one publisher that have the potential. The
publisher has to employ all possible ways and means, including a substantial ex-
76
penditure, to promote them. The competition is drastic today, and few songs ever
become popular standards. If you are going to terminate the rights after 25 years,
you are going to put the legitimate publishers out of business, because they must
live on those few popular standards.
It is the income from those popular standards he receives that places him in a
position where he can exploit the new compositions. Such a provision would mean
the death knell of our industry. I ask, why this radical curtailment of existing
rights, instead of participation in the extension of such rights?
Today, I ask the same question. Why extend the duration of
copyright protection without an equitable extension of the statutory
Hmit on the duration of transfers?
Following Mr. Abeles's appeal, the preliminary draft of the act
was amended to provide for termination of transfers after 35 years,
and, in fact, that is now codified in section 203. Congress recog-
nized, then, that the extended term warranted an extended period
in which publishers could recoup their investments from the cre-
ative process and the promotion of the works.
I would like to illustrate with a little chart to show under the
1909 act what the relative duration of transfers was in terms of
years under the bifurcated term and what it is under the 1976 act,
and under the legislation being proposed here. The chart shows
what would happen in terms of a balance between the publishers'
rights if they were left unamended the way it is listed in the bill
now.
What we are trying to bring to your attention is that the publish-
er's interest is what we are trying to get across here and if we don't
do something to change what has been put forward here, there will
be a significant imbalance of the rights that exit right now.
What Mr. Abeles noted more than 30 years ago is no less true
today. That many works and the investments in those works never
show a profit. Given the rich variety of music available to the
American public, few think about it, but for every song that be-
comes a hit, hundreds, many more, go unnoticed.
From a business standpoint, duration of the publisher's oppor-
tunity to exploit a work and recover his or her initial investment
is crucial. While this is true for all categories of music, it is particu-
larly true for serious works — classical works and musical theater.
According to the Music Publishers' Association, an organization
whose constituency is primarily involved with the production of
sheet music, and that endorses NMPA's points of view, the rising
costs of production makes investment in serious copyrighted mate-
rial a very speculative undertaking.
MPA has stated that in the United States, printing costs alone
for a symphonic work average $15,000. Printing costs for a full op-
eratic work range from $100,000 to $150,000. The markets for re-
covering such an investment are small and have been harmed
greatly by increasingly sophisticated photocop3dng technology.
The problems confronting publishers of such works is
compounded because much serious music gains little public expo-
sure or acceptance until many years after its creation. For example,
the famous Barber composition, "Adagio for Strings," experienced
only modest economic success following its debut in 1939. It be-
came popular 25 years later, however, when the piece of music was
used in connection with the funeral of President Kennedy.
77
Another Barber work, an opera, "Anthony and Cleopatra,"
premiered in 1966, but it was not performed or recorded again
until 1991. This cycle of earnings which is typical of serious and
classical works means that a composition, which may some day be
recognized as an American classic may not return a profit to the
creator's descendants or to the music publisher owner within the
current term of copyright protection, let alone during the 35-year
period set under section 203 for the duration of transfers.
The term of protection granted the author and the heirs under
the 1976 act was life plus 50. The term of works made for hire is
generally 75 years. But publishers who take copyrights by transfer
and who invest a range of resources in promoting the work and its
success, have their rights terminated in 35 years.
Like many other copyright-based businesses, the music publish-
ing business is a global one. In assessing where to invest limited
resources, publishers must look at, among other things, the state
of national law as it affects their operations. Nations of the Euro-
pean Union do not limit the duration of transfers by statute, as the
United States does. Under the laws in these important markets
publishers and writers are free to negotiate a transfer for the dura-
tion of copyright, or any portion of the term.
Without some adjustment of the Cop3n'ight Act's existing provi-
sions on term of transfers, U.S. law may have the unintended effect
of driving publisher investment overseas.
We urge you to consider these points carefully as you proceed in
your review of this important legislation and to act to maintain the
balance between author and publisher interests that has been a
feature of the U.S. copyright law virtually since its inception.
We look forward to working with the subcommittee on this im-
portant point and towards passage of H.R. 989.
In closing, I would like to offer one final observation. In the pe-
riod of consideration of the 1976 Act, Congress recognized that,
with each day that passed, works were falling into the public do-
main. Some heirs would lose copyright protection forever, in part
owing to the press of other legislative priorities.
Should consideration of this important legislation be delayed, I
strongly urge this body to follow the precedent of earlier Con-
gresses and pursue a resolution calling for a temporary moratorium
on the expiration of copjn'ight. Such a step would be a demonstra-
tion of the commitment to the preservation of the jewels in the
crown of our Nation's cultural heritage and enduring respect for
the American artists and creators.
Again, our thanks to the chairman and so many members of the
subcommittee for their sponsorship of this very important legisla-
tion. Thank you.
[The prepared statement of Mr. Murphy follows:]
78
Prepared Statement of Edward P. Murphy, President and CEO, National
Music Publishers' Association, Inc.
Good morning Mr. Chairman and members of the Subcommittee. I am
Edward P. Murphy, president and chief executive officer of the National Music
Publishers' Association, Inc. ("NMPA").
I am pleased to appear before you today to provide the American music
publishing community's views on H.R. 989, the "Copyright Term Extension Act
of 1995." NMPA represents more than 600 music publishers, and NMPA's
subsidiary, The Harry Fox Agency, Inc., serves as licensing agent for more than
13,000 music publishers, located in California, Tennessee, New York and
throughout the United States.
Music publishers, generally speaking, are holders of copyright in musical
works. The publishers' role is to nurture the creativity of songwriters and
composers through artistic, professional, and economic support. Following the
creation of a musical work, the publisher functions as its promoter, seeking
recordings, performances and other modes of distribution.
The publisher is the business side of a partnership with the music creator.
He or she administers the copyright in the work and takes steps to protect it
79
-2-
from unauthorized exploitation, including acting as an advocate (sometimes
individually and sometimes through NMPA) for strong copyright protection and
enforcement throughout the world.
The music publisher also serves as a counsellor in the overall development
of the creator's career. For all of their contributions to the creative process,
music publishers enjoy a close partnership with their songwriter and composer
colleagues.
In light of the special role that music publishers play in the creative
process, and because of the strong bonds between publishers and songwriters and
composers, NMPA is especially pleased to voice its support for term extension.
The trade arguments in support of term extension are overwhelmingly
persuasive. More and more, the U.S. economy is supported by the production
of intellectual property by American creators and its dissemination to an eager
world market. According to an economic study released by the International
Intellectual Property Alliance, in 1993, the American copyright industries
accounted for nearly four percent of the Gross Domestic Product and produced
nearly $46 billion in foreign sales.
The benefits to the United States of maintaining a leadership position in
advancing strong international copyright norms are self evident. In numerous
bilateral negotiations, in the North American Free Trade Agreement and in the
Uruguay Round agreement on the Trade-Related Aspects on Intellectual
Property Rights, the United States' persistence yielded improved levels of
80
-3-
protection. As the world's leading provider of copyright "content," the U.S.
charted the way for the recognition of exclusive rental rights in certain works, for
copyright protection for software, and for an adequate term of protection for
sound recordings in countries that do not protect those works under copyright.
On the issue of duration of protection for copyrighted works in general,
however, the European Union is pointing the way. And NMPA fears that way
will be a dark and hostile one for American creators and rights owners. The
E.U. directive invokes reciprocity through the Berne Convention's "rule of the
shorter term." Works of U.S. origin will fall into the public domain in the
countries of the European Union at the expiration of their life-plus-50 term,
while those same countries will grant works of their own authors an additional
20 years of protection. The only way U.S. works can qualify for the extended
term is for our law to grant an equal extension -- in other words, for H.R. 989
to become law.
As this Committee considers H.R. 989 and the issue of term extension
from a domestic policy standpoint, however, NMPA urges you to consider an
addressing an additional point not now covered by the bill: the issue of the
duration of transfers of rights.
U.S. copyright law, back to the very first Copyright Act passed in 1790,
has struck a balance between the interests of individual authors who create works
and the publishers who foster the goals of copyright by promoting the wide
dissemination of those works to the public. In various Acts, up to and including
81
-4-
the 1909 Copyright Act, this was accomplished by a split-term of protection. The
1909 Act, for example, divided 56 years of copyright protection into two 28-year
terms, often referred to as the original and renewal terms. The theory behind
this approach, in part, was to give the author a second opportunity, at the
beginning of the second or renewal term, to renegotiate a transfer of rights that
may have proven to be less than satisfactory. The author was given a "second
bite at the apple" that could take into account the demonstrated value of the
work in the marketplace.
With the evenly divided, bifurcated term, each time the duration of
copyright was extended to the benefit of authors, publishers who made the initial
investment in bringing a work to the public received an extended opportunity to
recover their investment through a longer original term of protection.
Congress, with an eye toward U.S. accession to the Berne Convention,
determined in the 1976 Copyright Act to switch from a fixed 56-year term of
protection to Berne's minimum of the life of the author plus 50 years. In the
years of congressional review that preceded that major statutory rewrite, the
question of how to maintain the balance between creators' and publishers'
interests achieved by the split copyright term was thoroughly debated.
The notion of incorporating a statutory "cap" on the duration of copyright
transfers was eventually agreed upon as the appropriate approach. When it was
suggested that the cap be set at 25 years, Julian Abeles, then head of the
organization that later became NMPA, pointed out that the 25-year limitation
82
-5-
would make publishers three years worse off than they had been in under the
1909 Act's 28-year original term. Before a panel of experts convened by the
Copyright Office, Mr. Abeles said:
[t]oday there are so few songs of any one publisher that have potential.
The publisher has to employ all possible ways and means, including
substantial expenditure, to promote them. The competition is drastic
today, and few [songs] ever become popular standards. If you are going
to terminate the rights after 25 years, you are going to put the legitimate
publishers out of business, because they must live on those few popular
standards. It is the income from those popular standards he receives that
places him in a position where he can exploit new compositions. Such a
provision would mean the death knell of the industry. I ask, why this
radical curtailment of existing rights, instead of participation in the
extension of such rights. [Emphasis added.]
Today, I ask the same question. Why extend the duration of copyright
protection without an equitable extension of the statutory limit on the duration
of transfers?
Following Mr. Abeles appeal, the preliminary draft of the Act was
amended to provide for termination of transfers after 35 years, and, in fact, that
is period now codified in section 203. Congress recognized then that extended
term warranted an extended period in which publishers could recoup their
investments in the creative process and in the promotion of works.
What Mr. Abeles noted more than 30 years ago is no less true today: that
many works -- and the investments in those works -- never show a profit. Given
the rich variety of music available to the American public, few think about it, but
for every song that becomes a hit, hundreds -- maybe more -- go unnoticed.
83
-6-
From a business standpoint, duration of the publisher's opportunity to
exploit a work and recover his or her initial investment is crucial. While this is
true for all categories of music, it is particularly true for serious works, classical
works and musical theater. According to the Music Publishers' Association, an
organization whose constituency is primarily involved with the production of sheet
music, the rising costs of production make investment in serious copyrighted
material a very speculative undertaking. MPA has stated that, in the U.S.,
printing costs alone for a symphonic work average $15,000. Printing costs for a
full operatic work range from $100,000 to $150,000. The markets for recovering
such investments are small (and, have been harmed greatly by increasingly
sophisticated photocopying technology).
The problem confronting publishers of such works is compounded because
much serious music gains little public exposure or acceptance until many years
after its creation. For example, the famous Barber composition, "Adagio for
Strings," experienced only modest economic success following its debut in 1939.
It became popular 25-years later, however, when the piece was used in
connection with the funeral of President Kennedy. Another Barber work, the
opera "Anthony and Cleopatra," premiered in 1966, but was not performed or
recorded again until 1991. TTiis cycle of earnings, which is typical of serious and
classical works, means that a composition which may some day be recognized
as an American classic may not return a profit to the creator's descendants or to
the music publisher owner within the current term of copyright protection.
84
-7-
The term of protection granted the author and heirs under the 1976 Act
is life-plus-50 years. The term for works made for hire is generally 75 years. But
publishers who take copyrights by transfer, and who invest a range of resources
into promoting the work and its success, have their rights terminated at 35 years.
Like many other copyright-based businesses, the music publishing business
is a global one. In assessing where to invest limited resources, publishers must
look at, among other things, the state of national law as it affects their
operations. Nations of the European Union do not limit the duration of transfers
by statute, as the U.S. does. Under the laws in these important markets,
publishers and writers are free to negotiate a transfer for the duration of the
copyright, ^r any portion of the term. Without some adjustment of the Act's
existing provisions on termination of transfer, U.S. law may have the unintended
effect of driving publisher investment overseas.
We urge you to consider these points carefully as you proceed in your
review of this important legislation, and to act to maintain the balance between
author and publisher interests that has been a feature of U.S. copyright law,
virtually since its inception. We look forward to working with the Subcommittee
on this important point and toward passage of H.R. 989.
In closing, I would like to offer one final observation. In the period of
consideration of the 1976 Act, Congress recognized that, with each day that
passed, works were falling into the public domain. Some heirs would loose
copyright protection forever, in part owing to the press of other legislative
85
-8-
priorities. Should consideration of this important legislation be delayed, I
strongly urge this body to follow the precedent of earlier Congresses, and pursue
a resolution calling for a temporary moratorium on the expiration of copyright.
Such a step would be a demonstration of commitment to the preservation of the
jewels in the crown of our nation's cultural heritage and of enduring respect for
America's artists and creators.
Again, our thanks to the Chairman and so many members of the
Subcommittee for their sponsorship of this important legislation.
86
Mr. MOORHEAD. Thank you very much. The procedure we are
going to follow now is that each one of the members will have 5
minutes to ask questions. If it is necessary, we could have a second
round.
I am going to give both Mr. Conyers and Mr. Bono, who were late
for no reason of their own fault whatsoever — they had a little prob-
lem finding the building and the bus had left for John Conyers, so
they will have time to make an opening statement if they desire
to do so. I will take the first 5 minutes.
Mr. Murphy, you have told us what is presently wrong with the
law and that the bill that we have doesn't really correct the prob-
lems that you want.
I would appreciate it if you would give us specific recommenda-
tions in writing at a later time as to how to correct the problem
that you are concerned with. And anyone else that has — on the
panel that has a concern about this issue, can also make comments
and we will put it in our record.
Opponents of copyright term extension point out that there are
a number of benefits to the public domain that will be lost or post-
poned as a result of this legislation.
Ms. Bergman, how would you respond to that?
Ms. Bergman. Well, I think the point was well alluded to by my
colleague on my right, Mr. Valenti, when he spoke of the fact that
the consumer really does not have any benefit when a work goes
into public domain. The last time I looked, a recording of a Bee-
thoven symphony, for example, cost no less to a consumer than a
current pop album.
I also think that it is a question of economics. It is a question
of getting the works for free and they are not free to the consumer
just because they are in the public domain. Rather, they became
unavailable because there is no one to promote them or because
they are not protected. They are not promoted or they degrade, in
the case of film or they go out of print, in the case of books or re-
cordings. I think the benefit to the public is not served by having
works go into the public domain.
Mr. MooRHEAD. Mr. Valenti, in Europe there is not an equiva-
lent work-for-hire system for motion pictures. Wouldn't extending
the copyright term in work-for-hire situations from 75 to 95 years
give American companies more protection than their European
counterparts?
Mr. Valenti. What protection would they get, Mr. Chairman?
Mr. MoORHEAD. Moving it from 75 to 95 for work-for-hire situa-
tions.
Mr. Valenti. Of course, we are talking about — one is the Euro-
pean method or process of copyright is called droit morale, moral
rights, in which those people, other than the producer or the dis-
tributor of the film have the right to sometimes dictate the com-
pass course of that work through the sequential marketplaces in
which it goes.
Our works for hire allows the producer to gather in his one hand
all of the rights which allows them a disciplined and aggressive
marketing campaign in all the sequential marketplaces. The fact is
that the moral rights system that is now the nature of Europe
hasn't been working too well if you judge by the success of the cin-
87
ema industries in Europe, which Europeans will tell you, somewhat
unhappily, is in decline.
I spent the last week meeting with European producers on how
to revitalize the European cinema. Whereas the American system
of works for hire is confirmably and singularly the most successful
in all the world. Therefore, I don't think there is any rational per-
son that would want to inflict a system on this country that doesn't
seem to work an3rwhere else in the world.
But under copyright, the Europeans are bound to protect us. We
are a member of Berne. We joined in 1989. I wanted us to join a
lot earlier. But we are a member of Berne and therefore we are ac-
corded the protection of Berne. And if this copyright term extension
is granted, as I pray it will by the Congress, then we will be on
equal footing because as I said in my opening statement, the Euro-
peans are bound only by Berne, which is life of the author plus 50
years or 70 years, and they do not have any requirement to protect
beyond that, though they do have the right to lift their own copy-
right extension far beyond Berne as they have done.
So all we are asking very simply, this thing shouldn't be too com-
plicated. This is an economic issue, Mr. Chairman. It is a crucial
and pivotal economic issue. And that is we must match the Euro-
peans, else we are at a severe disadvantage. It is very simple. And
I am not going to try to complicate it by giving you any arcane
theories. -
Mr. MOORHEAD. I have a question here for either Mr. Richmond
or Mr. Murphy. Would you describe the types of film archives and
film preservation activities which might be eligible for the founda-
tion, how numerous are they and where are they located?
Mr. Richmond. In terms of how numerous they are, there are ar-
chives of all sizes and descriptions. One of the strengths of the
American archival community is that we do not have one national
archive. The national collection, so to speak, is held by literally
hundreds of repositories throughout the country, which are geo-
graphically dispersed and philosophically diverse.
The types of activities that could be funded by the foundation, I
can imagine, several. Certainly the funds to preserve and restore
archival collections that are held in nonprofit institutions that have
historical or cultural importance. Funds to catalog collections so
that information about them can be made available to the public.
Obviously, the public can't have effective access to this heritage of
theirs if they do not know what is there.
One of the major new shifts in film preservation community is
the emphasis on storage. It is no longer simply a question of pre-
serving a film by doing laboratory work. We recognize now the
films have to be stored under very good temperature and humidity
control in order to make sure that they can last as long as possible.
So I could certainly see this foundation working cooperatively with
others to help try to establish regional storage repositories where
many archives from a region could place their collections under ar-
chival conditions.
I think one of the big areas would be trying to make the Amer-
ican film heritage more accessible to people by cataloging is one
way, and the striking of reference prints and access copies. And
even for collections that are of special educational interest, the
88
digitizing of collections so they can be made available over the
Internet. Those would be some of the possibilities.
Mr. MOORHEAD. My time has expired. The ranking minority
member of the full Judiciary Committee, John Conyers, is here
today. He represents a district near Detroit and has been very ac-
tive in these issues. John Conyers.
Mr. Conyers. Thank you. And good morning, Mr. Chairman and
members of the committee and my friends on the panel and the la-
dies and gentlemen of interest who are here in this courthouse this
morning.
I am so pleased to be, by virtue of being the senior member of
Judiciary, a member on all of the subcommittees. And this one is
my favorite because it is the most farflung in terms of its oper-
ation.
In terms of shoring up intellectual property and looking at the
international questions, we have gone from Beijing to Xian to
Guangzhou to Seoul, but it took us coming to Pasadena to find out
that there was a south Pasadena. And not only one Grand Street,
but two, which made for an interesting diversion as we roamed the
Nation and sometimes the world in terms of these very important
intellectual questions.
But I am here. And all is well, here. I think this is a tremendous
subcommittee and a very important part of the Judiciary Commit-
tee. The fact of the matter is that under the new leadership, fre-
quently many of the issues that are subcommittee issues become
full committee issues. And so as you look upon us as guardians of
American intellectual property, don't forget that we also have to
deal with questions of how many automatic weapons should be al-
lowed in the United States of America; what should we do with flag
burners, if there are any and if they are conducting their horrible
activities; how much damages can be awarded under civil disputes;
and then, of course, these great questions of culture that bring us
to our subject matter today. Two measures that are actually rel-
atively simple in terms of the issues that are confronting us.
I see all of these things moving in the course of a great supporter
of our culture and music, in particular, as one who came on the
scene when the Vietnam issue was dividing the Nation, when the
civil rights movement was nascent and began to build. And there
was a young man with Lyndon Johnson named Valenti and a
young man with Dr. King named Conyers. And we both wove a web
of interrelationships that have spanned some 31 years, as I recall
it.
And it has been interesting because the basis of all our activity
here in this committee is essentially based on a constitutional
premise primarily embodied in the first amendment; this thing
called freedom of expression, this thing called the right to dissent.
And they have come together in a very curious way.
And the more I examine the Constitution and the laws of this
country, the more I realize that these laws don't just hang out
there by themselves. That, in fact, the laws give the framework for
people, government leaders, frequently fueled by public opinion, to
do things and make decisions within a constitutional framework
that have rather large ramifications.
89
And, so, we come here today to talk about the film industry and,
you know, history is one of those things that can frequently be
short-lived. The French made, to me, some of the most initial and
profound developments in the history of cinematography. But there
was something in the creative force in this country that I argue
was embedded in the first amendment, that allowed a creativity
that would not let culture become a department within a govern-
ment.
And that energy, that unlimitedness that is here in this country,
quickly moved us ahead, not just in movies, but in all the arts, the
literature, the languages.
And so today, we are premier. But it was not just a given that
it started off like that. To me, I think there is a constitutional
nexus that this committee, of all committees in the Congress, is
bound to observe and relate to every now and then.
And so, I am happy to be here now because the questions are not
as easy as they used to be in another generation, Mr. Valenti. We
are now torn between the first amendment and some very, very
delicate questions. How obscene is "Pulp Fiction," and as great an
art, and what if anything can or should we do about it? And what
about gangster rap? Want to play it for your 4-year-old son?
And so we come here now caught up in new and more difficult
constitutional questions at the very moment that we are moving
now into a more technical, a more technological era than ever be-
fore where all of our telecommunications, our digital, our TV, our
telephones, begin now to interact in new and powerful ways that
will require us to now go back and examine some of the very basic
premises that we have nurtured for all these years.
And so I close my comments observing that very much with us,
today, Carlos, is the spirit, and the former leadership of Bob Kas-
tenmeier, who for more than a decade led and inspired this com-
mittee.
As a matter of fact, he did such a good job, that if you weren't
on the Intellectual Property Subcommittee you left it to Kasten-
meier and Moorhead and later on Berman and let it go at that. The
rest of the Judiciary Committee took a pass on these questions.
But we can't do it anymore. And the reason we can't do it and
because a lot of my wonderful new leaders in government are tell-
ing us that venerable institutions no longer need to exist. I am told
on one hand that we don't need to worry about antitrust activity
in the department and then I am told on the other that the very
agency they would cede it to, the FCC, doesn't need to exist. You
only need an executive office there. Who needs Federal Commu-
nications Commissions?
Well, I think we need both. And I am not one of those — and
maybe I am one of the old dinosaurs around the 104th, but I am
not one of those that rush to this dismantling process with
unconcealed glee. I think it ought to be a very careful, deliberate,
well-thought-out approach. And now that we are out of that forced
march called 100 days, we are now able to give some thought and
dignity to the proceedings in the Congress. And this committee,
under our chairman, I know is committed to that.
As a matter of fact, some consider it a weakness; his fairness is
too fair, I think it is a strength. And I think it keeps this commit-
90
tee in the nonpartisan and yet forward-thinking way that is de-
manded of the times on the subject of intellectual property.
When we got back from China, the first announcement that we
received was that after long last, the movie industry would be able
to open an office in Beijing. We think that we may have had some-
thing to do with that.
We were looking in Asia, another huge area of our concern, for
the enforcement of the intellectual property agreements that they
have signed. You know, signing them are great days and great
sound bytes, but who is going to enforce intellectual property rights
in a country that has never heard of the subject in their judicial
system before?
And, thankfully, we have a provision in which we will help train
and that they are agreeable to that sort of thing.
And so, this, as you can tell, is a committee of — ^that I approach
with great enthusiasm. The concurrent resolution on jazz has al-
ways been one of my great delights. The movie industry which —
most Americans consider themselves to be movie authorities, not
just movie buffs and I am no exception to that. And to tour lots
and see African-Americans working on stages as construction
hands — I remember when that used to be fought bitterly, year after
year, how to get some black carpenters in the lots in Hollywood.
And you can walk in anywhere now and look around and they
weren't put there for me. It wasn't my benefit. I wasn't even sup-
posed to have been on one lot that we walked into last night.
To see African-American vice presidents of motion picture cor-
porations is a brandnew development and it continues the thread
that two guys brought, one with President Johnson and one with
Martin Luther King, over 30 years ago.
Thank you, Mr. Chairman for allowing me so much time.
Mr. MOORHEAD. Thank you, John.
One other member that has come in, he went to the wrong court-
house, which is understandable because there are several here in
Pasadena. But he is probably our most famous member, Sonny
Bono from Palm Springs, CA, the freshman Member in Congress,
someone who has had a fantastic career prior to coming here.
Sonny.
Mr. Bono. Thank you, Mr. Chairman. I will keep my opening
statement brief. Being a songwriter and coming from that industry,
there were always inequities that were hard for me to understand,
first initially as a songwriter.
I didn't know why the Government got involved in a song at all
or in a movie at all. As far as I was concerned, I wrote the song,
or somebody else did, and it was mine. But then I found out that
I could only have it for 25 years, I think, or 26 years. This was in
1952 when I started and wrote, "You Bug Me Baby."
And if you missed that moment, the song went away, and it
wasn't yours anymore and it became public domain. And it was so
strange. It is a very interesting business because a lot of the cre-
ators now are kids, and they grab a guitar and they write a song,
and it is just a sound to them. It is theirs. And that song becomes
a piece of art later on. And the creator never suspects sometimes
that that will become a piece of art for the rest of life. And so to
91
him it is just a little song that he wrote for his girlfriend or what-
ever.
And so you have somebody who is really not as serious as other
people who realize the commercial aspect of this. So you have got
a songwriter, then you have got the publishers, as Mr. Murphy was
talking about, who are aware of the commercial value of a song. So
if they hear a song, they hear the value, the commercial value of
a song. And their input is good. And they direct it in a proper way
with more maturity.
But it goes from a little song to a commercial venture and then
to a piece of art. And during this travel, it becomes public domain
or under a legislative body that can direct where it goes and how
it goes and what rights you have after you have created it.
So, I have a few questions that I want to ask. The public, and
even this committee — and I certainly don't mean that arrogantly —
sometimes, unless you are a performer and unless you are a writer,
there are more details at that level than anyone else is able to un-
derstand.
And one of the issues I want to — ^Mr. Murphy gave a beautiful
speech about publishers and I presume you represent publishers;
is that correct? I guess my question to you would be what right
does the songwriter have once he has designated it to a publisher
as far as reproductions of his song?
Say some group wants to do his song and he doesn't care for this
group or he doesn't think that his piece of art is represented prop-
erly, but the publisher sees the commercial side. What are the
rights of the songwriter?
Mr. Murphy. Mr. Bono, I think that a lot depends upon the con-
tractual understanding the songwriter entered into with the par-
ticular publisher.
Mr. Bono. And let me just stop you there and let me bring out
a point. And the point there that I want to go back to, the contrac-
tual rights, you have creators now that are 18, 17, so they enter
into a contract. And once they enter into that contract, they are
stuck to that, you know. And that goes on for life. It is unchange-
able.
And I guess I want to raise the issue of equity between the song-
writer and the publisher. And now we will go back to what does
the songwriter have to say if somebody records his song and de-
means his song or does his song in a demeaning fashion, what
rights does the artist have?
Mr. Murphy. In terms of the sale of recordings, as you know, Mr.
Bono, there is a compulsory mechanical license in America. And as
such, under the compulsory license, anyone, after the first use — ^you
understand that under the licensing system that has been put to-
gether by Congress, the first use has always been reserved to the
songwriter and to the publisher — the songwriter can prevent any
use, the first use. Once that has been done, performed and made
available to the public, the second and subsequent use then fall
under the compulsory mechanical license. And as such
Mr. Bono. Is that the songwriter's control when he records it for
the first time basically is what you are saying, correct?
Mr. Murphy. That is correct. The second time, once it has been
recorded and made available to the public, then other individuals
92
can come along and record your song. And, of course, under the
compulsory license, the song shouldn't be changed in any demon-
strable way. Because there are some changes that are made to the
song, but it shouldn't be demonstrable. No one should change the
lyrics or the original melody in any way.
There are certain liberties that are taken in the arrangement of
a song. It can be done electronically as opposed to an original piano
version or instrumental version. Generally speaking, that is the
right within the scope of the compulsory license. One cannot
change the lyrics of your song. One cannot in any way change the
song — ^the writer owns the song and they can't change it. If they
do, there is recourse under the law and you can go before the
courts and stop that.
Mr. Bono. Right. But let's go back to that. You can have your
song demeaned in other ways then just the lyrics altered. And that
is in the hands of the publisher only; correct?
Mr. Murphy. I am not sure I understand what you mean.
Mr. Bono. I am saying if another artist takes the song and it dis-
pleases the creator of that song and he would prefer not to have
that money or the song recorded by that person if they don't record
it in the fashion that it was written and the intention is somewhat
demeaning, does he have any rights or is it to the discretion of the
publisher only to say, yes, you can record that or, no, you can't
record that?
Mr. Murphy. Again, under the terms of the compulsory license,
anyone can record a song. I can think of some times when I was
a publisher that the original creators didn't particularly like a ver-
sion that was published, but under the U.S. act and regulations,
that version had to go out. I am talking about a recorded version.
This is not a revision of lyrics or text.
But the recording companies, as you know, do sign up an artist
and do make the selection of that song. And of course, once they
make that selection they have a right to put it out as long as it
doesn't in any way change the original constitution of that song.
Mr. Bono. Here is what I would like to suggest to you, because
we are getting into rhetoric. After a song is turned over to the pub-
lisher, he becomes more or less the owner of that song and really
the fate of that song is up to the publisher.
And when we talk about this legislation, since we are going to
have legislation and I understand you may get involved in that leg-
islation, one of the bones of contention that I have as a songwriter
is that you have nothing to say about your song after you write it
and after you turn it over to a publisher. So the publisher has all
of the say-so from that point forward.
So, if someone wants to take a song and mock you with that song
and use it to debase you, I guess that is the word, they can. They
have to be a little clever, but they can. But if it represents dollars
to the publisher, the publisher might let it fly.
Anyway, I think that one consideration we have to talk about,
since legislation is involved here, is that the songwriter — the cre-
ator should have as much rights as the publishers. And they don't
at this point in time because hypothetically they signed a contract
and it could have been when they were very, very green and didn't
know a thing about the business.
93
And so I would urge you, because I will be active in that area,
to let the songwriter have a say so. That has occurred with me sev-
eral times and there was nothing I could do about it. On the
Mr. Murphy. Mr. Bono, I would be happy to talk to you and give
you or any songwriter any advice that I can. Our organization
stands ready to help songwriters in this area and would be happy
to do this, and we do. That is what our organization does. And we
would be pleased to review that.
Mr. Bono. I hope, again, if we are going to go with legislation,
that we recognize the creator of the product. It is kind of like a
painting belongs to the painter, but the song gets taken away from
the writer. And I think it is inverted in some degree. So I think
that equity should be worked out.
As far as archives are concerned, wherever the Government con-
tribution is, is that public domain or is that for personal use? I
mean, does it belong to a movie company? Does it belong to a pri-
vate company or is it all public domain?
Mr. Richmond. I am not quite sure I understand the question.
I think I do. The way that the House bill 1734, title II would set
up the foundation, the foundation's primary role would be to work
with the film community to raise private sector funding and the
foundation would be eligible to match that funding with a limited
amount of Federal funds and then those funds would be given out
as grants to nonprofit institutions throughout the country for spe-
cific projects.
Mr. Bono. Are any of those preservations for private companies?
Mr. Richmond. No, the grants would be given to nonprofit insti-
tutions for specific projects. None of the funding would go to pay
for any overhead on a project. And the foundation would focus on
what has been described as orphan films, films that are held in the
public trust by public institutions.
The Hollywood studio films, I think we all agree, and the Holly-
wood community certainly has agreed, are the responsibility of the
studios to preserve.
Mr. Bono. I just think if they are privately held, then that
should be up to that private person. My time is up. Thank you.
Mr. MOORHEAD. Mr. Howard Berman.
Mr. Berman. Thank you very much, Mr. Chairman. How did the
ninth circuit ever get to Pasadena?
Mr. Conyers. Political power.
Mr. Berman. It is interesting hearing Mr. Bono's questions, or
reaction, the different ways we look at government. He sees it,
after I wrote my first song, how come the Government is only let-
ting me keep that song for 22 or 25 years. And I am thinking, the
Government is protecting me from all the thieves who want to steal
that song for 25 years. And here is a useful role for the Govern-
ment, trying to protect the creative rights of Sonny Bono and oth-
ers. And, in fact, on several occasions have extended that period of
time and now we are proposing to extend it further.
The Government is pla3dng the role of protecting the rights of the
individual creator against the people who would want to steal his
or her property. And so I guess it is all how you look at it.
Mr. Bono. Will the gentleman yield?
Mr. Berman. Sure.
9.'^.9R7 Qf? - 4
94
Mr. Bono. There is a price to pay for that protection, to give up
your property. I mean, a song is like a chair. PubHc domain means
you don't get the money anymore.
Mr. Berman. It is the Constitution, the legislature, and the judi-
cial branch that gave meaning to — well, we are getting back to the
state of nature in a way, but gave meaning to this notion of your
exclusive right to control and exploit your property.
And I guess we could take Mr. Murphy's suggestion of a tem-
porary moratorium and just make a permanent moratorium on the
expiration of copyrights. At some point, you have to — at some point
the property right is going to end. I mean, I haven't heard any seri-
ous discussion that generations after you have created it
Mr. Bono. Why can't the family keep it? It is an asset?
Mr. Berman. How far down?
Mr. Bono. Like a house or a car or like a painting, like any
asset, it should be whoever created it.
Mr. Berman. The Founding Fathers said this was in order to en-
courage you in your work. For a limited amount of time, you would
be protected. We are talking about, and I support the extension.
Mr. Bono. I would like to have the choice of the protection.
Mr. Berman. Well, I think you will need a constitutional amend-
ment to do that.
But I would like to ask just a few questions of the panelists.
First, Jack Valenti, when you deal with a motion picture — I know
this could drift into other issues that you are not here to testify on,
and I don't mean it to — what is the life of the author? Is it the stu-
dio that owns the copyright? Is it the producer who produces it?
What is the life of the author?
Mr. Valenti. The answer, Mr. Congressman, is it is not life of
the author under works for hire. It would be 95 years, period.
Mr. Berman. Ninety-five years. Because it is this kind of
Mr. Valenti. Under the works-for-hire concept, one can be a per-
son or one can be an enterprise.
Mr. Berman. Persons under present law get life of the author
plus 50
Mr. Valenti. Right now it is 50 years. Under the European
Union, it is life plus 70, which is the trampoline from which this
whole hearing springs, in my judgment.
Mr, Berman. What is the European Union's directive doing with
respect to motion pictures? How is it changing existing law?
Mr. Valenti. It would mean that a motion picture that is in 1
of the 15 member States of the European Union produced in 1 of
those member States, would have a life expectancy in the market
of thorough protection by the government for the life of the author
plus 70 years. It goes into effect
Mr. Berman. I am confused about this as to motion pictures, the
life of the author.
Mr. Valenti. In Europe there is a different concept.
Mr. Berman. You don't have work for hire in Europe?
Mr. Valenti. They have what they call moral rights. It comes
from the French phrase, droit morale, which gives the right to the
author under a theory called the auteur theory. In Europe it is the
director who has the authority over that motion picture, no matter
95
who invested money in it or who produced it, et cetera. It is a dif-
ferent concept than ours.
Mr. Berman. I understand. And I am just trying to translate
that into the different ways we treat copyright protection. In the
United States under the 1976 law, then, a motion picture is pro-
tected for a set period of years, which is what? How many years
under existing law?
Mr. Valenti. Correct. Fifty now.
Mr. Berman. Seventy-five years?
Mr. Valenti. Excuse me. I am sorry; 75, because you are going
20 more years in order to match the Europeans. Forgive me. I
erred. It is 75 years.
Mr. Berman. And the chairman's bill would extend that 20 addi-
tional years in the case of motion pictures?
Mr. Valenti. Correct. Correct.
Mr. Berman. Well, 20 additional years in all cases, but that is
how it would work here. From 75 to 95.
Just on the issue, since there is nobody testifying against the
copyright extension, the statement that works in the public domain
don't get effectively — clearly, I am for the bill. I think the trade ar-
guments are compelling and I think the notion of rewarding the
creator and thereby incentivizing the creator and the creator's heirs
for a reasonable period of time, not for centuries, but for a reason-
able period of time, argues for the bill and that is why I am a co-
sponsor of it.
But one of the arguments being given by some of you is that in
addition works that go into the public domain lose value and don't
get exploited. But books that have gone in the public domain, all
kinds of classical music is in the public domain. People have found
it economical to publish them and to produce the sheet music from
which symphonies in the public domain are performed and re-
corded and sold.
I mean, there is still value to a lot of those works. How would —
am I wrong about that?
Mr. Valenti. I don't want to speak about sheet music. I will
leave that to Mr. Murphy and the music I will leave that to
Marilyn.
In the movie business, let me give you the argument that I have
read in several papers which are in opposition, mostly by academ-
ics. And I haven't read any paper by anybody who is a professional
in the business who is opposed to this.
The academic argument is that, one, the customer benefits be-
cause he gets these public domain properties cheaper. The answer
is let's take "It's a Wonderful Life" in the public domain. I pay $52
a month for cable, and when it is shown on cable, my cable bill is
not reduced 1 cent. When it is shown on television, the television
station charges the advertiser the same rate that he charges him
for the hour previously, if it is in fringe time.
There is no economic benefit to the consumer that I have been
able to figure out. I have read a paper by Mr. Gomery of the Uni-
versity of Maryland in which he is talking about — he made his
principal pitch on silent film and if you had public domain, silent
films would suddenly become very popular. But even the ones that
are in public domain now, the distributors of public domain films
96
are fortunate and happy to sell a few hundred copies. So we are
talking about an infinitesimal amount in the marketplace.
The fact is, Mr. Berman, that a picture that is in public domain,
unless it is a unique thing, like "It's a Wonderful Life", which of
the 500,000 films on deposit at the Library of Congress, stands out
singularly, nobody invests money to enhance that film.
Beethoven is different. I presume you can put out some sheet
music on Beethoven or make a copy of the Beethoven symphony.
But when you are mucking around with a negative on which you
have to spend hundreds of thousands of dollars on that negative
and knock off the prints on that, too, you are talking about a siz-
able investment and, therefore, few people are willing to make it.
That is why some of these public domain prints become so haggard
after a while.
I have seen some "It's a Wonderful Life" renditions on television
that I think it is a disgrace to put on the air, with lines across it
and the print is in a debilitated form.
Mr. Murphy. Mr. Berman, two examples that come to mind
about the public domain and its value — what it means. When you
think of what happens in the Soviet Union or in any country where
there is absolutely no control over copyrighted works, you don't
have any products available, be it classical music or anything. Peo-
ple will not invest where there is no stability or no copyright base.
Where the copyright base is there and there is protection for
copyright, people are willing to invest and they make the products
available. It is truly that simple. I was president of G. Schirmer
Music Co. before I came to head up NMPA and the Harry Fox
Agency and G. Schirmer was the leader in the world in producing
classical music and educational music.
And in our repertoire we had a lot of classical music and we had
a great deal of difficulty competing with China and the Philippines
and places where they would produce product and ship it on into
the United States from Asia where it was cheaper to manufacture,
so we didn't do it.
What we did do is things that were copyrighted and often the
copyrighted works are what actually carried our expenses to put
out works which we wanted to have for a full repertoire. So you
would bring the classical music out, but also hopefully get some
royalties from other works from ASCAP and BMI from some of our
composers.
Mr. Berman. Let me make sure I understand how the whole
copyright law works. When Toscanini conducts and some record
company records a Beethoven symphony which is in the public do-
main, is that Toscanini recording conducting the New York Phil-
harmonic in a Beethoven symphony, is that a copyrightable record?
Mr. Murphy. No, sir. No, it is not copyrightable. You may —
Mr. Berman. Somewhere, a record company over and over and
over again has decided that notwithstanding, that it is not pro-
tected, notwithstanding that there is value in going out
Mr. Murphy. Have you copyrighted "Circle P," that is a copy-
rightable work as a phonogram. "Circle C," — ^the music itself— is
not copyrightable unless you do an arrangement of that work, there
may be rearrangements of a public domain classical work which
97
are copyrightable. Although the preponderance of classicals work
that is out there for "Circle C" is in public domain.
Ms. Bergman. If I may, I think that you stack the deck a little
bit when you go to Beethoven. I think the earlier example that Mr.
Murphy gave of the Samuel Barber piece is a better example of a
work that was created some 25 or 28 years before it found an audi-
ence.
Now, that is very common in the world of serious music. I don't
like to use the term "serious music." It makes our music sound friv-
olous, but I mean classical music. But it also happens in popular
music where one never knows when a piece of music is revived, a
song that either had a life at one time and expired and then is re-
vived by a contemporary artist and becomes a hit.
I submit
Mr. Berman. But the problem for that is the unfairness to the
original creator and his heirs.
Ms. Bergman. That is the point.
Mr. Berman. It is not that that won't happen. No works will dis-
appear necessarily.
Ms. Bergman. But your question went to the promotion. Who
then is going to print sheet music? Who then is going to work on
the song from the creator's point of view? If you are depending
upon the creator himself or herself, it might not be economically
feasible. It may be the one song in somebody's catalog that earns
them some money long after the copyright is gone. You never know
where and when an older work suddenly gets a second life.
And I think this goes to the heart of the whole concept of intel-
lectual property as property. And I certainly agree with Congress-
man Bono that at the heart of that argument, property is the oper-
ative word here and it is no less real because it comes from the fac-
tory of someone's mind as this cup that somebody made, which is
not biodegradable, may I add.
But I don't think that a piece of intellectual property should be
biodegradable either. And I think why we are here today is pre-
cisely what you were talking about to enhance the right of the cre-
ator and extend the length of the protection of the work.
Mr. Berman. And put the Government on the side of enforcing
those rights.
Ms. Bergman. Exactly. Exactly. Exactly.
Mr. Berman. Thank you, Mr. Chairman.
Mr. Moorhead. Thank you, Mr. Berman. Our next questioner
would be Xavier Becerra.
Mr. Becerra. Remember to say the H, Mr. Chairman. Xavier.
Let me ask a question to anyone on the panel who wishes to try
to answer this. Back in 1976, when we did alter the copyright laws
to extend them for the 20 years, there was some debate about who
would receive the right to that extended copyright.
Ultimately, the right was given to the owner of the copyright and
not to the author, if the author had transferred that right to the
present owner, the publisher, for example.
What was conceded to the author was a 5-year period under
which the author, if he or she submitted some type — or initiated
a termination of that right, could then during that 5-year gap, get
full rights to that copjn-ight.
98
I just realized in reading — in preparing for the hearing that the
current legislation that we have before us, H.R. 989, doesn't alter
the language in the current law which says that the right goes to
the owner, but can be canceled by the author if the author acts
within 5 years, the time under which the right would expire for the
possessor of the copjn^ight.
I don't know if that was an oversight, Mr, Chairman, on the part
of the sponsors and the cosponsors of the legislation, but I would
be interested in hearing the opinion of the panel as to whether or
not we should be providing the same type of protection to the origi-
nal authors of that work that we provided in 1976, a 5-year right,
which I understand in many people's eyes was a major concession
on the part of the authors since no one bargained for an additional
20 years back in 1976. And I suspect the same thing applies now
in 1995 that no author or current owner or purchaser of that copy-
right bargained for an additional 20 years.
Mr. Valenti. I cannot speak for other members of the panel be-
cause there is a difference in this gossamer sculpture of an author.
Marilyn and Alan Bergman are authors. They write their songs.
They do not deploy 100 people to help them. I guess they sit in a
room and do it alone. You don't sit in Hollywood Bowl when you
are creating, do you?
Ms. Bergman. No, sir.
Mr. Valenti, They are authors, Samuel Barber is an author. He
wrote a s3miphony. In the movie business we are the only art form
in this country that I know about that is collaborative, I guess a
stage show would be the same thing,
Mr. Berman. And legislation is.
Mr. Valenti. It is a collaborative effort. You deploy a hundred,
a thousand people on the set. And who is the author? That is why
the author in the motion picture, the copyright owner, can be an
enterprise that puts the money together and organizes the entity.
A good example, tell me who the author is of "Gone With The
Wind"? It was written by Margaret Mitchell and the book was
bought by David O. Selznik, whereupon he hired, count them,
seven different directors. Hired one, they get on the set; fired him
and finally brought on a fellow by the name of Victor Flemming.
He finished the picture. He hired, count them, over 20 writers.
Mr. Becerra. Let me interject. I think the case of films is dif-
ferent because we do in this country recognize work for hire. But
in the case of those works
Mr. Valenti. 1 will withdraw from the microphone.
Mr. Becerra. I am more interested, I guess I should say, in
hearing from the publishers or ASCAP, those people who represent
both the original authors and those who purchase the rights to that
copyright; in many cases the publishers.
Should we be providing the same type of extension, even if it is
the minimal extension of 5 years, to try to terminate that right
that we provided back in 1976? As I understand it, correct me if
I am wrong, the legislation that we have before us does not alter
section 304(c)3, which provided for that 5-year time period within
which to revoke the transfer.
Ms. Bergman. My counsel just handed me a note which says be-
cause the bill doesn't alter the existing termination right, it still
99
would be — and I cannot read this word. Looks like "placed" and the
author, if he exercised the termination right, would recover the
copyright for an additional 20 years. It was considered in drafting
the bill.
Mr. Becerra. And maybe your counsel could come to the mike.
As I read section 304(c)3, as I have it here, the right — the language
is very specific. It doesn't say it is a 5-year right to terminate at
expiration of the current copyright. It says 5 years within which to
terminate after 56 years.
So once 56 years expires, you are out of luck. And this 20-year
extension would still not help those authors who had works back
in the 1920's and the 1930's who are about to expire because the
56 years would expire for them in many cases in the mid 1990's
or 1997, whatever the case may be, but they will not get the extra
20 years. We would have to amend the language to say over the
next 76 years.
Give us your name.
Mr. MOORHEAD. Take the mike.
STATEMENT OF FRED KOENIGSBERG, COUNSEL, ASCAP
Mr. KOENIGSBERG. My name is Fred Koenigsberg. I am counsel
to ASCAP. I thank you for the opportunity to answer the question.
This point was considered. Congressman, very carefully. The ter-
mination right that is provided in section 304, which allows the au-
thor to recapture the work at the end of 56 years would still be in
effect even for those works that were originally published in the
1920's as you just alluded to. But the recapture that the author
would then have under the bill as drafted and as introduced would
be a recapture not for the last 19 years of the copyright term,
which is what the 1976 act provides, that is 56 years into the 75-
year term, but it would be a recapture at 56 years for a 95-year
term. So that the author would then be recapturing not 19 years,
but 39 years, the entire remainder of the copyright term. And that
takes care of the author's rights fully.
It is not that the author needs another termination right. To the
contrary, the existing termination right would enable the author to
recapture this entire extension period as well.
And the bill, as drafted, doesn't have to provide for an additional
termination right because by keeping the termination right exactly
the way it works under current law, it enables the author to recap-
ture not merely for the remainder of the old copyright term, but for
the remainder of the extended copyright term as well.
And as Mr. Murphy's testimony indicated, there is a delicate bal-
ancing here. There is a question of publisher's rights, of author's
rights, and obviously that has to be discussed and worked out. But
the point was most definitely considered in the drafting of the bill
and was considered, I think, from the perspective that have you
looked at it.
Mr. Becerra. Let me ask this question, and follow me through
on the scenario. Someone writes a song in 1923. Under this current
law and under this legislation, you are given 56 years
Mr. Koenigsberg. The song was written in 1923?
Mr. Becerra [continuing]. And say the author perishes, dies in
1923. So you are given — ^you count the 56 years, correct?
100
Mr. KOENIGSBERG. Right. Which takes us to 1989.
Mr. Becerra. And then you count a 5-year period.
Mr. KOENIGSBERG. There was a 5-year period from 1989 to 1994
under which the author's heirs could have recaptured that copy-
right. And, presumably, if it was a work of commercial value and
if they did not reach an agreement with their existing publisher —
which in many cases occurred because they were happy to reach
agreement; but, presumably, if they wanted to recapture it then,
they did recapture it; and they have recaptured it.
Mr. Becerra. Let's say someone didn't negotiate during that pe-
riod or didn't try to terminate during that 5-year period in 1989 to
1994, for whatever reason, believing that there was no reason to
try to extend the right for those extra 20 years.
Mr. KOENIGSBERG. For the extra 19.
Mr. Becerra. Now, it is 1995. This legislation passes, and now
we have extended the right of the copyright another 20 years. The
owner now has another additional 20 years. But the author, be-
cause current language says you must act between 56 years plus
5, no longer has the right to go to the owner of that copyright and
say, you have got 20 extra years on something I wrote. That was
not negotiated when we first transferred the copyright to you. So,
in essence, that owner of the work is losing 20 years' worth of copy-
right.
Mr. KOENIGSBERG. First of all, let's talk about what case we are
talking about. We are talking about the narrow case where the
work is older than 56 years today but younger than 75 years. That
is all we are talking about.
And I should tell you. Congressman, we very carefully looked at
this question as well. Don't think we overlooked it.
The thought was that, in this case, if the work had had any com-
mercial value at all and if it was in the author's — actually, the au-
thor's heirs is what we are talking about — interest to recapture
that copyright, they would have done so for 19 years as readily as
they would have done so for 39 years.
Mr. Becerra. But what if the author never knew about the ex-
tension that was granted in 1976? Say it was an obscure piece
Mr. Bono. Will the gentleman yield?
Mr. Becerra. Sure, if I can just finish this; and then, of course,
I will yield.
What if the author — it was an obscure piece, never got much no-
toriety, and all of a sudden Michael Jackson picks it up and, boom,
it just takes off. What if the person thought why try to pick up
$200 worth of royalties for the next year for 19 years? I will let it
expire. All of a sudden Michael Jackson does something with it,
and the 20 years' extension is granted through this legislation, and
now there is megadollars being lost by the author because he or
she may haven't understood the law well, been advised of it and
now no longer has that opportunity.
Mr. KOENIGSBERG. That is a danger that always exists. It doesn't
merely apply to these works. And it is for that reason that au-
thors— I think particularly in the music area songwriters have
groups like the Songwriters Guild of America that makes it a point
of telling their members you have got a work, and it is coming up.
And publishers do this, too.
101
\
Mr. Becerra. I am hearing that I shouldn't worry about some-
thing that affects your membership. You are telHng me that you
are OK with the way it is. You wouldn't rather see the legislation
amended to, say, 76 years versus 56 years.
Mr. KOENIGSBERG. That is exactly right. Congressman.
I can tell you and Ms. Bergman, as a member of ASCAP's board
can confirm, that ASCAP's board, who are songwriters and music
publishers, ASCAP's board voted a resolution that said that this
bill, the bill that Congressman Moorhead has introduced and that
you all have cosponsored, is the bill that ASCAP supports.
Mr. Becerra. Was there any dissension or discord among the
songwriters or the authors within ASCAP?
Mr. KOENIGSBERG. There was a great deal of discussion by both
the writers and the publishers. It doesn't just go one way or the
other, as Mr. Murphy has pointed out. But the conclusion of
ASCAP's members was that this was the bill that they were sup-
porting.
Mr. Becerra. Thank you. Let me yield to my colleague.
Mr. Bono. Thank you.
You raise an excellent point, and it is a classic case of legal
knowledge and very little knowledge about legalities. And what can
easily happen is what you are talking about, is that a nonlegal
mind can just go on with life and suddenly realize they should have
done something. Not everybody — excuse me, not everybody gets the
data that the lawyer is conveying to you. Not every songwriter —
and, again, bear in mind a lot of these guys are kids. They are bril-
liant, but they are kids who go on with life and forget about these
things. So it is a strange situation.
And I think this — I think your point is very well taken. I think
at the point of transition that the songwriter could be informed
that they have rights or should have an opportunity at the point
of transition, but on the one hand you are doing the songwriter a
tremendous favor. You are letting some guy maybe in the south
who wrote three songs and they hit be a source of income for him
for his annuity all his life, so that is wonderful.
But, on the other hand, like you say, this other scenario could
get played out; and he could blow billions. So, you know, I think
it is only fair that there is some effort made to inform them of this
situation.
In most cases, probably 99 percent of the cases, the songwriter
would say, great, we want the extra time — I know I would — and
probably would not grumble about that. But it is an excellent point,
and that occurs. The publishers have a battalion of attorneys. The
songwriter has none.
Mr. Becerra. I thank the gentleman for his insightful com-
ments, and I will yield to my other colleague from California.
Mr. Berman. I understand the songwriter who decided to con-
tinue the publisher, not terminate the publisher and continue him
for 19 more years, probably would make the exact same decision
if it was 39 more years. I mean, it is hard to understand the situa-
tion where he would not make that extension.
It is the flip side that I am wondering about in terms of the pub-
lishers. This reminds me of one of my less successful entries in the
102
copyright field with a Supreme Court case called Mills Music where
I got chewed up on all sides.
But is — Mr. Murphy, are you saying that you think it is all
right — we agree that it is all right for the songwriter to be able to
cut us out of 19 more years even though we did all the work, ex-
ploited it and did all this stuff to make it a successful commercial
effort. It is all right to cut us out for 19 more years but not to cut
us out for 39 more years?
Is that, in a sense — that that — are you taking the other side, in
a sense, of Mr. Becerra's question and wanting the bill to change —
whatever publishers were on the board of ASCAP don't reflect your
view on thus issue?
Mr. Murphy. Yes. What we are saying is we want a balance of
the publishers' rights. If there is a term extension, we would like
to see the balance be kept so that the publishers would be able to
receive an additional term extension, if you will, as the writers
would be.
Mr. Berman. You would be able to if they don't terminate you
after the 56 years; right?
Mr. Murphy. That is correct.
Mr. Berman. But if they do terminate you, then you are no
longer terminated for the next 19 years before it goes into the pub-
lic domain. You are terminated for 39 years, and that bothers you?
Mr. Murphy. Yes, sir.
Mr. Berman. Thank you.
Mr. Becerra. I will leave this point, other than to say it almost
feels patronizing to think that we need to do something for you if
you all don't think it is necessary. So I will drop it for now.
But I am a bit concerned that there may be some songwriters or
others who write a copyrightable work that may not find the same
protection afforded to them that was afforded in 1976. And it was
hotly debated then as to whether the rights should adhere to the
owner rather than the author, and the burden is on the author to
somehow terminate that right or that extension to transfer that
right.
If anyone on the panel is interested in answering this question,
if I can get a brief response, we are considering extending for an-
other 20 years; and I am a cosponsor of this legislation to do so.
Can we expect that in another 10, 15, 20 years we will be hearing
from you all again to extend another 15 or 20 years because peo-
ple's life expectancy has grown and because Europe is doing some-
thing different as well?
Ms. Bergman. I think that most of us have made clear that this
request is in response to the life-plus-70 that the European Com-
munity will be entering into a month from now.
The life-plus-50 was based on an agreement in Berne, which was
to cover two generations. That was the original plan. Two genera-
tions now is longer than it was.
Mr. Becerra. So would it be your opinion that if Europe changes
its current regimen and says life-plus-90
Ms. Bergman. I think the trade argument speaks to that. I think
if, at a certain point, it becomes clear, as it is now to us, that our
country will be operating at a disadvantage in terms of the balance
of trade, then, yes, I don't see why it shouldn't be reopened. If the
103
trade argument is valid for life-plus-70 then maybe some day it
would be valid for life-plus-90.
Mr. Becerra. We want to be sure that we are competitive in the
market.
Ms. Bergman. Exactly.
As the only songwriter on this side of the table, I think there is
some confusion that I hear about the way the word owner, author,
artist, songwriter is being used. Sometimes they are used inter-
changeably here this morning. And I am sorry Mr. Valenti is not
here; but, for example, the author of "The Way We Were" on the
copyright form in Washington is Columbia Pictures. It is not us.
And, as he said, my husband and I and Marvin Hamlisch sat
alone in a room. It was not quite the same thing as Victor
Flemming and a team of directors working on a sound stage creat-
ing the whole frame of the movie.
And under that contract, Congressman Bono, because this enter-
prise is the author, yes, the words can be changed; yes, the music
can be changed; and, yes, we don't have control because it was a
work for hire.
Mr. Bono. I understand.
Mr. Becerra. Thank you very much for that.
And let me just short-circuit this. I close with just a question for
Mr. Richmond. Mr. Richmond, can you tell me — again, briefly, be-
cause I know my time has expired, pretty much — what efforts have
been made to protect or preserve works of less general or public
recognition or less industry recognition such as some of the works
done by early black filmmakers or — there is a particular film that
comes to my mind, "The Salt of the Earth," which I thought was
a tremendous piece; but, obviously, it was a low-budget piece that
talked about a subject that may not be that appealing to the gen-
eral audience.
What is the preservation board doing in regards to works which
are culturally and historically important to this Nation but may
not have always been considered culturally and historically impor-
tant?
Mr. Richmond. Well, I think what the board is doing — the main
thing they are doing is trying to get the legislation passed for the
National Film Preservation Foundation, because that is the entity,
working with the Nation's archives, that will focus on the preserva-
tion of films that do not have a Hollywood studio with both the eco-
nomic interest and the financial capabilities of preserving it.
Many archives throughout the country do have to focus on those
kinds of films. Many of the black films, films by black filmmakers
that you are talking about, I know have been preserved or are
waiting to be preserved at the Library of Congress, at the South-
west Film and Video Archive in Texas and at other archives
throughout the country.
So the archival community certainly is aware of the importance
of this. We spend a lot of time trying to acquire the footage we
need on these types of films that we know are especially in danger.
And we do prioritize trying to preserve them.
But it is our inability right now to stay ahead of the race against
time that is really the impetus to the legislation that we have been
talking about today.
104
Mr. Becerra. The legislation speaks about, with regard to the
foundation, creation of the foundation, about providing for a diver-
sity of points of view from the film community, and it does mention
the different players within the film community.
I am wondering what your opinion would be about extending
that beyond diversity of the film community. Because I know for
the longest time there were few people who spoke up for black
filmmaking or for the growth of Latino artists within the film in-
dustry. How do we make sure that there is a voice that reflects
that portion of the American community?
Mr. Richmond. I think including historians and educators in the
process would be a very good thing.
Mr. Becerra. We currently do include them. And I know that
the preservation board has a membership of about 20, and it is
fairly specific in the law as to who sits on the board, from which
associations and which sectors of the industry. And I believe there
are two or three members who are appointed at large.
Do you know what the membership is of the current preservation
board? For example, how many African-Americans or minority
members might sit?
Mr. Richmond. I am sorry. I am not a member of the board, and
I am not familiar with the current membership.
Mr. Becerra. Do you think it would be worthwhile to have lan-
guage in the legislation that reauthorizes not only the preservation
board but also the foundation, that considers not only the diversity
points of view of the film industry but the diversity of the points
of view of the American community?
Mr. Richmond. I think the intention of the foundation is to in-
clude that kind of diversity of input, and anjiihing that can be done
to ensure that I would be very much in favor of
Mr. Becerra. And I am happy to hear you say that.
I see nothing in the legislation, as it is currently drafted, which
would urge in the formation of the foundation's board, or even in
the current preservation board, that we move toward ensuring that
type of diversity to the degree — as the language is — to the degree
practicable.
Do I hear you saying that that is something that you think might
be worthwhile considering, including diversity beyond that within
the film industry?
Mr. Richmond. I would be very much in favor of that, yes. Input
from the broadest range of the American public is necessary in
making decisions on what does get preserved with the limited fund-
ing that is available. Even with the foundation in place, realisti-
cally, not everything gets saved. It is impossible. Not everything in
any area of life gets saved. So, hard decisions have to be made; and
those decisions should be as informed as possible.
Mr. Becerra. I agree. And I think these days we are recognizing
more and more that there are works out there that are culturally
and historically significant which maybe 10 or 30 or 40, 50 years
ago we would never have considered them as such. And I think you
are right, and I hope we head in that direction with this legislation
as well.
Thank you, Mr. Chairman, for the time.
105
Mr. MOORHEAD. Thank you. And I want to thank this panel. It
has been excellent. We appreciate you coming over and contribut-
ing to this discussion.
Mr. CONYERS. Mr. Chairman, could I add my compliments to the
panel and to Mr. Valenti who recently had to leave because of a
time consideration? But I think this has been an extremely reward-
ing discussion about some very important issues within the two
pieces of legislation that you have commented on. Thank you very
much.
Mr. MoORHEAD. Thank you.
I am going to ask the second panel to come forward.
Our first witness on the second panel will be Ms. Martha Coo-
lidge, who is the cochair of the Directors Guild of America's Presi-
dent's Committee. Ms. Coolidge is one of today's most well-known
directors. She directed two major film productions back to back in
the past year: "Angle" and "Lost in Yonkers." Ms. Coolidge has di-
rected other award-winning movies such as "Rambling Rose" and
"Valley Girl."
She holds a masters of fine arts degi-ee from New York Univer-
sity and started her professional career by directing award-winning
documentaries. She helped to found the Association of Independent
Video and Filmmakers, Inc. She serves on the board of directors of
the Directors Guild of America, Women in Film, the American Film
Institute, and was named to the dean's advisory board of UCLA's
School of Theater, Film and Television.
Welcome, Ms. Coolidge.
Our second witness will be Jeffrey P. Eves. Mr. Eves is the presi-
dent of the Video Software Dealers Association. The VSDA rep-
resents over 20,000 video retail stores in North America.
Prior to his present position, Mr. Eves was the corporate vice
president of Fort Howard Corp. He served in senior level manage-
ment positions in the areas of international trade government and
market. Mr. Eves was appointed by President Nixon as Special As-
sistant to the President and Chief Liaison between the White
House and the business community and by President Ford as Di-
rector of White House Conferences.
He holds degrees in business from the University of Nebraska
and in economics firom the University of California at Berkeley.
Welcome.
Our third witness is Mr. Michael Weller. Mr. Weller is a play-
wright and screenwriter, having written over 40 plays and screen-
plays, including "Hair" and "Ragtime." He is a member of the Writ-
ers Guild of America East and the Dramatists Guild of America,
where he serves as a council member.
Welcome.
Our fourth witness is Ms. Judith M. Saffer, assistant general
counsel of Broadcast Music, Inc., BMI, one of the Nation's largest
performance rights society.
Ms. Saffer was a graduate of the New York University Law
School, a member of the executive committee and the president-
elect of the Copyright Society of the United States. She is also sec-
retary of the Foundation for a Creative America and is active in
the American Intellectual Properties Lawyers Association.
106
Before commencing her career in the law, Ms. Saffer was a pro-
fessional ballet dancer with the Ballet Russe de Monte Carlo and
appeared in films and television as an actress and dancer.
Welcome, Ms. Saffer.
We have written statements from our four witnesses, which I ask
unanimous consent to be made a part of the record; and I ask that
you all summarize your statements in 10 minutes or less.
Again, I ask that the subcommittee hold their questions of all
four witnesses until they have completed their presentations. And
I feel we are very fortunate to have such a very fine panel today
and with so many accomplishments.
Mr. Becerra. Mr. Chairman, I hate to interrupt, but I do notice
that it is 11:30, and we probably took a lot more time with the first
panel than we should have. I know that each panelist has a great
deal of information to provide.
We do have their written testimony, and I would urge us to ask
the panelists, as much as possible, to limit their opening state-
ments so we can have as much time to engage in a good dialog with
them and have the question-and-answer period extended, because
I know we are going to start losing members because we were told
that the hearing would end at about 12.
Mr. MOORHEAD. I don't want to limit them too much, because
they have waited for a long time. Use those comments with discre-
tion.
Mr. CONYERS. Mr. Chairman, I respectfully enjoyed the discus-
sion that my colleague engaged in, so for him to suggest that
maybe the witnesses ought to be briefer might come at a little bit
inopportune moment.
This panel will not convene again, and I know that members
have to leave. We are very important people. But let's give them
as full a time as possible. Normally, it is a 5-minute period, but let
us be as generous as we can.
Mr. Becerra, And, Mr. Chairman, I meant in no way to limit
them. I only wish to be able to participate, as I know some of the
individuals who are on the panel probably have some urgent mat-
ters to care for. And I would hate to see that we lose some mem-
bers because we all have things to do. And I would love to have
them talk as much as possible.
Mr. Moorhead. Well, let's let the witnesses get started.
STATEMENT OF MARTHA COOLmGE, MEMBER, DIRECTORS
GUILD OF AMERICA, INC.
Ms. COOLIDGE. My name is Martha Coolidge. I am a feature film
director and a member of the Directors Guild of America and a
member of its president's committee, which has guided our legisla-
tive efforts in Washington.
I am here to ask the subcommittee to support H.R. 1248, the
Film Disclosure Act, in the name of fairness to consumers and to
film artists as well.
What we would like to see is a simple statement of fact regarding
motion pictures altered after their initial release and shown on TV,
airlines, and cassettes. Tell consumers clearly and succinctly how
the movie has been altered and give the director, screenwriter, and
cinematographer a chance to object if she chooses to do so.
107
Hardly revolutionary, H.R. 1248 is a truth-in-the-marketplace
bill entirely consistent with current practices which tell consumers
about the products they buy.
Soon I will be completing my next major film, "Three Wishes."
It will be released at about Thanksgiving, and I hope that you will
all come to see it and you will bring your families, and I hope that
you will see it more than once.
About a year from now, "Three Wishes" will start to show up in
the ancillary marketplace — on cable, in hotels, on airlines, on cas-
settes, and then perhaps on the networks and then syndicated tele-
vision. What is virtually certain is that when this film is distrib-
uted in these markets it is going to be altered. Shot for the wide
screen, it will be squeezed into a square TV form and edited for TV
viewing, not for violence or sex but to fit in an assigned time slot.
And it may be speeded up on TV, a process called lexiconing, de-
stroying all my careful timing.
I have high hopes for this movie, commercially and artistically.
I am applying the 25 years of experience I have in directing films
to guide this project frame by frame to the best possible outcome.
It is my reputation that is on the line when people see this film.
And when they see less than I have given, I would like them to
know that.
When "Three Wishes" is altered in the ancillary markets, I would
like people to know how it has been altered; and I would like the
opportunity to object to these changes if I judge them egregious.
This is all that H.R. 1248 seeks to accomplish.
I consider myself a film artist. I am a painter, a storj^eller, using
motion picture cameras, sound, and music. I am involved in an art
form, the great American art form; and what we do in making
films enriches the artistic and cultural heritage of our country.
Let us treat the people who see movies and those who craft them
with the modicum of legal respect this bill provides.
What will happen if the labels in the Film Disclosure Act are ap-
plied to films? Great upheaval in the marketplace if you listen to
our opponents. But where is the evidence for this? There are three
labeling regimes in place today, including the inadequate one from
the MPAA, and no economic catastrophes have ensued.
The companies have a history of opposing every innovation on
the basis that the sky will fall, and it is appropriate for the sub-
committee to keep this in mind. The companies have argued that
TV, the director's cut, and even VCR's would all ruin the motion
picture industry. Not only were they wrong, but all of these ad-
vances have vitalized the industry economically. And judging from
this history, if the subcommittee wanted to boost the financial for-
tunes of the producing companies and distributors, it ought to pass
H.R. 1248 unanimously today.
Why do we need a law? Why can't we work this out among our-
selves? We tried, and we failed. We couldn't get the major compa-
nies to agree on a factual label that would in any way recognize
the efforts of those on the creative side.
But even if we had agreed on the words on a label, we would
have failed in application because of the complexity of the universe
of film ownership and distribution. There are too many players. No
table in Hollywood, nor anyone in Washington where the tables are
108
even bigger, could accommodate everyone whose presence would be
required.
Here is a personal example reflective of this complexity. A few
years ago, I directed a motion picture called "Rambling Rose" about
the awakening of human love. It was not a movie about sex, but
one sexual scene was critical to the film's plot and the development
of its main characters.
The airline distributors simply cut the scene out of the movie,
turning the story into gibberish. I had offered to trim the scene,
but my offer was refused. This happened at Academy Award time
when the film was being considered for nominations. The reputa-
tions of the actors, the writer, and my own reputation were at
stake.
The copyright holder, Carrolco, insisted in defense of the movie
that the altered version carry a label laying out the alterations, but
many airlines refuse to buy movies with restrictive labels. Here we
have the copyright holder insisting on a label and distributors and
exhibitors turning thumbs down.
This is an example of the complexity in the world of production
and distribution and the reason why only a national law can ad-
dress the matter of labeling.
Let me briefly add the endorsement of the Directors Guild to
both of the other measures under review today, copyright extension
and the reauthorization of the National Film Preservation Act.
As the Europeans move ahead to extend copyright terms, we
need to do the same thing as a matter of equity and economics.
We enthusiastically support reauthorization of the Film Preser-
vation Act, particularly since the act grew out of our own early lob-
bying efforts. With funding for film preservation choked off at the
National Endowment for the Arts, it is more important than ever
that the Library of Congress continues to hoist the banner for pres-
ervation efforts.
Mr. Chairman, I am sure this hearing is a first, taking testimony
on three different bills that affect directly, though in disparate
ways, the motion picture industry. I take it as a sign that Congress
now recognizes the complexity of the economic, artistic, and cul-
tural issues related to motion pictures.
In our view, all of these measures advance either a sense of eco-
nomic fairness related to movies or advance their importance in the
cultural sphere. The most elemental advance would be to end de-
ception in the U.S. marketplace and tell consumers when the movie
they are watching has been altered. This stamp of authenticity is
a small step to take to enhance respect for our greatest art form.
And I want to personally applaud Mr. Bono for his concern for
the creators of songs which I think is very similar to our concern
for the creators of film, our film artists,
I just have three things that I would request, Mr. Chairman, to
be placed into the record:
The first is the position paper supporting the Film Disclosure Act
by the American Cinema Editors and by the Motion Picture Editors
Guild.
The second is a short letter to you and the committee from
Jimmy Stewart supporting H.R. 1248. Mr. Stewart has been con-
109
cerned with this issue for many years and has visited Congress
several times.
And, finally, I am pleased to announce that the Screen Actors
Guild East and West have officially voted to support the Film Dis-
closure Act. This is a tremendous vote of support for the bill. SAG
is a huge union with almost 80,000 members all over the United
States. And I would like to point out that this position of support
underscores the traditional relationship of trust between actors and
directors.
Thank you very much, Mr. Chairman, for listening to our peti-
tion.
[The prepared statement of Ms. Coolidge follows:]
Prepared Statement of Martha Coolidge, Member, Directors Guild of
America, Inc.
My name is Martha Coolidge, and I am privileged to appear before the sub-
committee today in my capacity as a feature film director and as a member of the
Directors Guild of America. I have been a member for some years of the DGA's
President's Committee, which has steered our efforts in Washington to provide
greater protection for films and film artists.
Perhaps I am alone among the witnesses giving testimony this morning in being
enthusiastic about all three pieces of legislation that the subcommittee is consider-
ing today, though my remarks in the main focus on H.R. 1248, the Film Disclosure
Act of 1995.
I would doubt that any other single Congressional hearing has ever focused on
three bills together that relate so directly, though in disparate ways, to the motion
picture industry. I take this as a recognition by Congress of the importance and
complexity of our industry in economic and cultural terms.
Before the main focus of my remarks, let me briefly touch on H.R. 989, the bill
extending copyright term, and H.R. 1734, the bill reauthorizing the National Film
Preservation Act.
H.R. 989
Within the last year or so, the European Union has adopted a rule extending the
term of copyright among its member nations, essentially seeking to harmonize dif-
fering copyright terms among the countries of the Union. And as is almost always
the case when the Europeans lead the way, the emphasis is on providing greater
protection to authors.
Too often, our own country, the world's leading copyright exporter, follows along,
rather than leads, in efforts to enhance protection. We must not delay, though, in
adopting a longer term of copyright protection for reasons that essentially have to
do with equity and economics.
It simply is unfair that authors and copjnright holders in Europe should enjoy a
greater incentive to the production of further work through enhanced protection de-
nied their American counterparts. There is also what I would call the "Free lunch"
issue, in which Europeans will be able to enjoy American cop5rrighted works without
paying for them, though European authors will be compensated.
The average theatrical motion picture these days costs many millions of dollars
to make. To recoup this investment, the companies have to distribute product in
many countries and over a long period of time.
The copjrright term of a number of landmark films, such as "Gone With The
Wind," will expire within a few years, even though there is obviously considerable
commercial value left in the film. Cycling more money through the system through
an extended copyright term will help insure future production.
Having said this, it is worth noting that the directive from the European commu-
nity that encourages a longer copyright term also explicitly states that "the prin-
cipal director of a cinematographic or audiovisual work shall be considered as its
author or one of its authors. Member states shall be free to designate other co-au-
thors."
Again, as in the case of Berne implementation, we in the U.S. seem spurred on
to higher levels of copyright protection by following a European model, but we do
so selectively. So long as we studiously avoid a discussion of moral rights, of natural
persons as authors, even in a collaborative setting, we will not close the gap of hy-
pocrisy with which the Europeans regard our copyright policy.
110
So, we support the extension of the term of copyright, but we would ask that the
subcommittee hold hearings on H.R. 1244, the Theatrical Motion Picture Authorship
Act, introduced by Congressman Bryant, to explicate the issues surrounding moral
rights. Maybe we can find a way to close this hypocrisy gap completely.
THE NATIONAL FILM PRESERVATION ACT
Of course, the DGA enthusiastically supports the reauthorization of the National
Film Preservation Act, an act which grew out of our earlier lobbying efforts to en-
hance film protection.
Without recounting the whole history of this act's passage, suffice it to say that
in its initial bill form, it offered elements relating to labeling and preservation. The
labeling elements have been dropped, and in fact, picked up in a more extensive
way by the Film Disclosure Act.
But the preservation act, as it is presently constituted, continues to do important
work, particularly in trying to salvage and restore artistically and culturally impor-
tant films on the edge of extinction.
The National Endowment for the Arts used to provide some funding for film pres-
ervation efforts, but has been forced to abandon these efforts in the face of previous
budget cutbacks. Given the Endowment's present peril, it seems extremely unlikely
that any of these ftinds will ever be restored.
So it seems particularly appropriate that the Library of Congress should continue
to raise a small banner on behalf of preservation efforts.
The bill before you adds another title to establish a mechanism for preservation
fundraising in the private sector in support of the Act's purposes. Given the times,
particularly the cutback in Endowment funding, we believe this title is a creative
and necessary adaptation if we as a nation are to continue even mincing efforts to
save our country's extraordinary film heritage.
These funding efforts are essentially private and voluntary, and government ap-
propriations are only available on a matching basis.
H.R. 1248
Both of these measures concern us, but the bill that has the most import for us
is the Film Disclosiire Act, H.R. 1248, sponsored in the House by Congressman Bar-
ney Frank and in the Senate by Senator Alan Simpson.
This is the third Congress in which a measure similar to this one has been intro-
duced; we intend to persevere as do our legislative friends. This subcommittee has
previously taken testimony on a similar bill, but the times and circumstances have
changed somewhat, and so we are particularly glad to have another opportunity to
raise some issues regarding the bill with the subcommittee.
The purpose of the bill is simple. When a theatrical motion picture has been
changed, after its initial release, for viewing on, among other avenues, TV or on a
cassette or on an airliner, tell people. Describe succinctly the changes that have
been made and give the director, the screenwriter, and the cinematographer a
chance to object to these changes if they choose to do so. It is the artistry of the
film that suffers through alterations, and so it is only proper, in oiu* view, that the
main creative authors ought to have a chance to comment on an altered version.
We consider this bill in the vein of consumer protection. When a film is advertised
for viewing on television, either the networks or syndicated television, the public is
given the clear impression that what they will be seeing is the version they saw,
or wish they had seen, in the movie theater.
Our opponents have argued that the viewing public is aware that changes have
been made to the film when it is shown on TV. We contend that the argument is
preposterous — the viewing public has no idea of the extent to which feature films
are routinely cannibalized for TV viewing.
When the rectangular dimensions of a film's theatrical version are squeezed
(panned and scanned) into the square format of a TV screen, as much as 45 percent
of the visual image is lost. To fit a film into a specified time allotment, usually two
hours, substantial chunks of the film are often edited out — not primarily for taking
out objectionable scenes of violence or sex, but for fitting in more commercials. Ofi;en
this gross editing turns a coherent narrative into gibberish. Then you have an insid-
ious process called lexiconning which speeds up scenes (altering the pace of the per-
formances), again in order to fit in more commercials. Finally, among the alterations
most common is the one most well known, colorization, in which a computer's colors
are added to a film originally shot in black and white.
Obviously, not all of these alterations are made to all films, but a very, very large
percentage are subjected to panning-and-scanning and gross editing. Obviously, as
filmmakers who labor over each scene, we find all of these alterations objectionable.
Ill
But we are not here to seek yovir help in ending or deterring these alterations. Abso-
lutely not!
What we are saying is that these alterations are egregious and widespread, and
that the public has absolutely no idea of the extent to which movies shown on TV
do not reflect the theatrical version they believe they are seeing.
So, as a matter of truth-in-advertising, simply tell the people. Put it another way.
Those who oppose labeling are really putting themselves in the position of defending
false advertising in the marketplace, hardly a high moral plane from which to
mount a defense.
But leave morality out of this. The real fear about the labeling bill we endorse
is that its implementation would somehow cause economic harm to the industry.
This is always the argument to which the producers and distributors return.
Firstly, we would advocate nothing that would harm the industry in which we
make our living. When movies are shown in ancillary markets, as they must be to
recoup their costs, directors get something out of it, thanks to the negotiated resid-
ual arrangements. We would not support legislation that negates these arrange-
ments.
Secondly, the producers have a long history of wailing how innovations are going
to ruin the industry. Television was going to ruin movies; VCR's were going to ruin
movies. Now labels are going to ruin movies. Congress should bear in mind this
chicken little, the-sky-is-falling style of arguing. If history is any guide, labels ought
to increase revenue substantially through the public demand for authentic theatrical
versions in ancillary markets.
Thirdly, there currently are a variety of labeling regimes in place and operating,
and there is absolutely no evidence that any untoward economic consequence has
occurred as a result.
This really is the crux of the matter. Would labels have a negative impact on the
production or distribution processes? Based on systems in place, the empirical an-
swer, the answer with any evidence behind it, is emphatically no. The MPAA has
produced no factual evidence to support their view. In fact, each time they have
warned that their fortunes would be ruined by the institution of a new idea, exactly
the reverse has turned out to be true.
The subcommittee is aware that the MPAA companies instituted a voluntary la-
beling system a few months ago relating to the release of new (and altered) feature
films into the ancillary markets.
From our point of view, these labels are totally inadequate and misleading. They
do not provide information succinctly as to what changes have been made in a film,
nor do they provide an opportunity for a director, cinematographer, or screenwriter
to object if he or she would choose to do so.
Let me give an example. When a movie has been edited, the company label states
that the film "has been edited for content." Clearly, the implication is that the vio-
lence and sexually provocative scenes have been deleted in conformance with family
viewing sensibilities.
But this is the phrase applied to editing, period. Family movies, where there is
no violence or no sex scenes, bear the same label. If the company labels are crafted
to be so manipulative, much better not to have them at all. Consumers are being
gulled when we ought to play it straight.
What is wrong, or what untoward economic consequence would flow from saying
"five minutes have been deleted from this film"? There is nothing to be afraid of
on any level from telling the truth, and that is what the Frank-Simpson bill is all
about.
Let me also point out that the labeling regimes adopted by Turner Entertainment
on their colorized films or the American Movie Classics cable channel have not and
do not harm in any way the marketing and distribution of films.
(Turner Entertainment adamantly opposed the original adoption of the National
Film Preservation act because of its labeling provisions. Within weeks of passage,
and before the Library dropped these provisions, Tiimer began running labels on
all its colorized films, again doing no discemable marketing damage whatsoever.)
Let me also point out that the MPAA companies lobbied the FBI successfully so
a very official looking label warning of piracy infractions goes on cassettes. So the
opposition by the MPAA to official labels is pretty selective.
Why do we need a law? Why can't we sit around a table in Hollywood and work
this out?
We tried. And we failed. We failed because we wanted the labels to be clear about
the alterations that were made, and because we wanted an artistic author's dis-
claimer.
And we failed because in a very important regard the MPAA could not deliver on
a promise it made to Congress in encouraging voluntary discussions.
112
The MPAA had said that any agreement we reached would be embraced by copy-
right holders and distributors across the board. They could bring them along, so
they said.
They couldn't; they haven't. And this was one of the main reasons we were reluc-
tant to begin talks in the first place. As a matter of fact, when we began voluntary
negotiations, there was an explicit commitment that the networks would go along
with whatever emerged from the talks.
When the talks broke off, the MPAA said to us and the other creative guilds sit-
ting around the table, they would simply go ahead and implement the label they
found satisfactory and we did not.
But that is not the label presently appearing on a few feature films because the
networks, for whom the MPAA was supposedly acting as a good faith surrogate, ob-
jected. The networks forced the MPAA to make a bad label even worse. As we said,
the MPAA can't bring all the players to the table; the table isn't big enough.
In any case, Congressman Frank and Senator Simpson have set out to make the
American public aware of changes made in films — not a few films, as is the case
through the MPAA labels, but the 20,000 films in domestic circulation. Film owner-
ship and distribution is in many hands; only some of which are MPAA companies.
The simple and indisputable fact of the complexity of the universe of film owner-
ship and distributorship is the reason for legislation. Only a national commitment
to inform film consumers will bring all firm copyright holders and distributors
under the tent of disclosure.
We would argue that the time for notices on films, such as the labels we support,
is more important now than ever before. The new digital revolution quickly unfold-
ing before us provides greater and greater opportunities for manipulating entertain-
ment and information products. Film labels are nothing more than certificates of au-
thentication— that something has been changed from the original version you were
expecting.
When movie industry officials — and government officials — press the Europeans to
let our film and television programs pass freely into their countries; when we press
China to put a stop to the theft; of our films — we hear that all of this is done in
the name of America's film artists. It is they, we hear, who are being denied the
rewards of their labor. It is they who craft the artistic and cultural products that
are craved in foreign markets.
Would that the producers would take the same line in this country as they take
abroad. We believe that rhetoric that films are an art form, created by artists, and
that they are our best and most ubiquitous ambassadors of the American way of
life.
We don't believe the producers should play the violins of pathos about American
film artists when it suits them abroad, only to stand adamantly against a respectful
regard for films and film artists in this country.
Telling consumers what changes have been made in a film, giving directors,
screenwriters, and cinematographers a chance to object, is a small increment of re-
spect.
Ms. COOLIDGE. And I believe I am supposed to introduce Mrs.
Henry Mancini.
Mr. MOORHEAD. Without objection, the documents are made a
part of the record.
Ms. COOLIDGE. May I do that?
Mr. MoORHEAD. Yes.
[See appendix, p. 503.]
Ms. COOLIDGE. Mrs. Henry Mancini has a very short statement.
Mr. MoORHEAD. Go ahead.
STATEMENT OF MRS. HENRY MANCINI
Mrs. Mancini. I will be very, very brief.
I am the widow of Henry Mancini who passed away last year,
and I am here to just point out to you that the body of work that
he left is certainly woven into the fabric of the international music
landscape. I urge you to pass the legislation that extends the copy-
right law.
113
And, with that, I won't take up any more of your time. Thank
you very much.
Mr. MooRHEAD. Mr. Eves.
STATEMENT OF JEFFREY P. EVES, PRESIDENT, VIDEO SOFT-
WARE DEALERS ASSOCIATION, ON BEHALF OF THE COMMIT-
TEE FOR AMERICA'S COPYRIGHT COMMUNITY
Mr. Eves. Good morning, Mr. Chairman. My name is Jeffrey
Eves. I am president of the Video Software Dealers Association, an
international trade association for the home video entertainment
industry.
VSDA's 3,000 member companies represent some 20,000 video
stores and provide more than 500,000 jobs nationwide, and I appre-
ciate the opportunity to share our views with you on this important
matter this morning.
I am here this morning on the behalf of the Committee for Amer-
ica's Copyright Community. We are a group of industries that work
together to protect the flourishing U.S. copyright system from so-
called moral rights legislation.
We believe moral rights laws, such as the film labeling legisla-
tion that you are considering today, would disrupt a legal regime
that is working well for copyright owners, for distributors, for
American consumers and for the U.S. economy.
Today I will focus my remarks on the film labeling bill and its
impact on the people that I represent, the men and women who
manage and run tens of thousands of stores where American con-
sumers rent and purchase prerecorded movies on videocassette.
Mr. Chairman, the American consumers vote with their pocket-
books every day. They have made home video their No. 1 leisure
time activity and their top choice for viewing movies. Last year,
American consumers spent $14.5 billion renting and buying videos,
almost three times what was spent to acquire and purchase movie
theater tickets. In fact, each week over 60 million people in the
United States visit a video store — 60 million people a week.
You are all probably familiar with the typical video store. As you
know, it is an environment that lends itself to conversation. People
discuss whether a movie was good or bad, whether an actor was
right for the role, whether the movie was as good as the book. I
can assure you that you will not hear debates on the issue of film
to video adaptation, which is the essence of the moral rights dis-
pute raised by some members of the creative community.
Consumers love the low cost, variety, and convenience offered by
home video; and they know the experience of watching a movie in
their living rooms is different from watching it in a darkened thea-
ter. Consumers do not need a warning label to tell them that, and
video dealers do not need a disparaging label that seems to discour-
age renters from renting and buying movies on video.
I do not mean to take an5rthing away from the creative geniuses
that are involved in the movie-making process. In fact, in response
to concerns raised by proponents of this legislation, the motion pic-
ture industry adopted a voluntary film labeling program in 1993.
The voluntary program, which calls for labeling of both the video
and the video package, has been a great success. In fact, we re-
cently reviewed the top 40 video rentals listed in the May 13th edi-
114
tion of Billboard magazine and found that 90 percent of them were
in compliance with the voluntary labeling program.
The voluntary label in use today informs the consumer without
disparaging the video product. It says: "This film has been modified
from its original version. It has been formatted to fit your tele-
vision set." And I will show an example or two of that in a minute.
This voluntary labeling system applies to home video, cable, pay-
per-view, broadcast television, and every other medium. It is likely
that the film that was shown on your flight from Washington to
Los Angeles was labeled under this system.
In our opinion, the legislation before you is a quintessential ex-
ample of unnecessary Government regulation. Congressman
Frank's bill represents Government intrusion into a marketplace
that is working successfully for the industry and for the consumer.
This legislation, Mr. Chairman, would seem to have all the charac-
teristics of a solution in search of a problem.
While the supporters of this legislation may quarrel with the pre-
cise wording on the voluntary label, that does not mean that Gov-
ernment needs to step in in this case. This is an issue that the in-
dustry can and should resolve on its own.
The labels included in this legislation would mislead consumers
by making it appear that they are getting an inferior product when
they buy or rent a video. Under H.R. 1248, if an artistic author ob-
jects to any alterations, pay-per-view, cable, and network television
broadcasters would be required to note the objection in a signboard
warning at the beginning of the film. The home video release would
carry the additional burden of permanently noting the objection not
once, but twice, on the video boxes which serve as the primary
means of marketing the video product.
Mr. Chairman, I would like to take a moment and show you a
video that demonstrates the voluntary labeling program that I
have been speaking about. I will show you several labeling exam-
ples, including home video, broadcast television, and pay-per-view;
and I will compare these labels to the Government mandate label
for automobiles. I think you will see how much more effective the
voluntary labels are when compared to the Government-mandated
label.
If you will play the tape, the first clip is taken from the home
video of Disney's "Angels in the Outfield." As you can see here, the
label is in legible type and displayed in a conspicuous and readable
basis.
The second example comes from a Universal film, "The River
Wild", with Meryl Streep.
Mr. Herman. Is this on TV or video?
Mr. Eves. This is on videocassette. Again, this clip comes from
a video; and it is available in stores all over the country.
Next, I would like to give you a couple of examples of how these
labels appear on the home video package. I have copies of a couple
of movies here, and I think you may have copies of this as well.
And you will see the labeling in both cases appearing on the back
side of the videocassette.
It says: "The film has been modified from its original version. It
has been formatted to fit your television set." One just like the one
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that you see here in front of you and the kind most everyone
watches at home.
As additional evidence — and if you don't have some boxes of this,
Mr. Chairman or Members, we can certainly pass them out — as ad-
ditional evidence of the widespread implementation of the program,
I would like to show you this from the CBS movie that was shown
on free TV in May viewed by millions of people. It is with Whoopi
Goldberg in "Ghost." You will notice that the label for the broad-
cast movies indicates that the film was altered to fit within a 2-
hour time slot and omits certain content.
The other example, from a pay-per-view movie offered in Wash-
ington in May, Arnold Schwarzenegger with "True Lies." And this
is the labeling that went on that where it talked about the movie
being formatted to fit the TV screen.
Now, Mr. Chairman, let's compare the voluntary label to one that
would be required in H.R. 1248.
The following label can be found on pages 13 and 14 of the bill.
What is on the screen is not exaggerated or embellished in any
way. It is too long and difficult to understand; and if anyone takes
the time to read it at all, they are going to think they are getting
an inferior product. A broadcaster who carried that label would be
inviting the audience to do something else with their time.
We are concluding with a label that is actually used today, a fed-
erally-mandated label. You will see it goes through three different
screens. I am talking about the label required for the advertise-
ment of an automobile. I don't know how many of you have taken
the time to read it.
The particular example that have you seen here comes from an
advertisement for an automobile broadcast in Washington, DC, in
May. As you can see, the voluntary labeling program very effec-
tively informs the consumer about the product that they are view-
ing without disparaging the product itself.
A Federal law such as the one proposed in H.R. 1248 is simply
not necessary.
Mr. Chairman, I thank you for your time and attention.
[The prepared statement of Mr. Eves follows:]
116
Prepared Statement of Jeffrey Eves, President, Video Software Dealers
Association, on Behalf of the Committee for America's Copyright Community
INTRODUCTION
Mr. Chairman, my name is Jeff Eves and I am President of the Video Software
Dealers Association. VSDA is the national trade association of home video retailers and
distributors. We represent the vast majority of the 30,000 video stores across the country.
Although my expertise is in home video, I am also here today on behalf of the
Committee for America's Copyright Community. The Committee represents a wide range
of copyright industries, including producers of books, magazines, newsletters, computer
software and databases, sound recordings, broadcasting, cable, video, advertising and
motion pictures. (A list of CACC members is attached). Its purpose is to ensure the
continued vitality of the American copyright system. This copyright system has made the
United States the world leader in virtually all areas of creative works.
Mr. Chairman, we are strongly opposed to H.R. 1248, the Film Disclosure Act of
1995, which would create a complicated, burdensome, government-mandated labeling
program to address a problem that does not exist.
Mr. Chairman, this particular legislation was first considered by your Subcommittee
in 1992. It remains a solution in search of a problem. American consumers enjoy access
to the finest of films in the world through a variety of channels - theatre, video, network
television, cable etc. Since the advent of television, consumers have been able to view
1
117
motion pictures in their living rooms through "panning and scanning," a technique which
adapts the film to the television screen.
Mr. Chairman, as VSDA noted in its testimony before this subcommittee in 1 992,
there has been no consumer dissatisfaction and no call for labeling. Rather, Americans
have salivated over their ability to view films through television, and more recently have
welcomed the ability to access films through video rental. Despite the complete lack of
evidence of a problem, in 1993, the industry itself embarked on a voluntary labeling
program, sensitive to providing full disclosure to consumers about "panning and
scanning, " colorization and editing for content and time.
Today, Mr. Chairman, under the voluntary program, the videocassette jacket bears
a label indicating that the theatrical version has been adapted. Furthermore, the
videocassette itself includes a label at the beginning of the movie which says, "THIS FILM
HAS BEEN MODIFIED FROM ITS ORIGINAL VERSION. IT HAS BEEN FORMATTED
TO FIT YOUR TV," or "THIS FILM IS A COLORIZED VERSION OF THE ORIGINAL
BLACK -AND-WHITE FILM." Studios, TV networks, cable networks, TV affiliated
stations, and independent TV stations have been using these labels since October 1993.
In fact, we did a survey of the top forty video rentals listed in the May 13 Billboard
Magazine and found that 90% of the theatrical films that are now in video are already
labeled.
118
This industry-led effort is providing consumers with concise, clear labels so that
viewers are actually informed rather than confused by scores of differing, complex and
lengthy messages. The marketplace works. It is not appropnate for government to jump
in and micromanage this issue. This is not only a bill that would pose terrible problems to
the film industry, it would be a devastating precedent that would threaten the bargaining
and contractual process that underlies our copyright system.
H.R. 1248 is not a simple labeling bill. It is not as it claims, a simple measure to
inform consumers of changes made to a film's theatre version. In addition to important
technical adaptations, such as "panning and scanning" described above, the bill also
would regulate broadcaster editing for community taste and minimal changes made in
order to meet a preexisting schedule. Under the bill, if a local TV station edited one
minute from the 4 o'clock movie to expand its news hour to cover a breaking local story, it
would have to check on whether any of the artistic authors had objected, and if so, include
a label. This legislation is an administrative nightmare for not only a video store, but
America's television stations and will clearly impede consumer access to films.
I. H.R. 1248 WOULD RESULT IN THE DENIGRATION OF HOME VIDEOS
H.R. 1248 requires notification to the "artistic author" of a motion picture to
determine objections to any "matenal alteration" to a film. If there is any objection, the bill
would require a label. For example, if there is objection to "panning and scanning," the
119
label must bear the following statement:
"THIS FILM IS NOT THE VERSION ORIGINALLY RELEASED. IT HAS BEEN PANNED
AND SCANNED. THE DIRECTOR AND CINEMATOGRAPHER OBJECT BECAUSE
THE ALTERATION REMOVES VISUAL INFORMATION AND CHANGES THE
COMPOSITION OF THE IMAGES." This label would be affixed to the video box, not
once, but in two locations, and then placed on the shelf in a video store to advertise the
availability of the movie.
The voluntary labeling program that covers 90% of the films distributed, makes this
kind government mandated requirement totally unnecessary. A consumer is informed, but
without having the product denigrated. Under the dictates of H.R. 1248, a consumer is
likely to perceive that they are being told the altered version is an inferior product, one
they would not enjoy nearly as much as the original version that had been approved by
the director and screenwriter. These denigrating labels would be confusing to customers
and deter them from renting or purchasing the cassette.
II. H.R. 1248 COULD IMPEDE THE DISTRIBUTION OF FILMS
H.R. 1248 would create the possibility of restraints on the sale of films after
adaptation for television or home video. Just as a product is ready to send to a network or
video retailer, squabbling over whether labeling was adequate could delay the availability
of the product until it was stale or prevent distribution to the retailer and, more importantly,
120
the consumer.
The bill's complicated, time-consuming process of tracking down the artistic
author(s) to determine objections to "material alterations" poses significant impediments to
the distribution of a film. The delay for negotiating an acceptable resolution and
repackaging the cassettes with an adequate label could deny retailers access to the
product during the peak marketing window immediately following the principal theatre
exhibition promotion campaign. The legislation would also provide for an injunction
against further distribution of inadequately or improperly labeled products, literally pulling
them right off the shelf.
H.R. 1248 threatens not only the thousands of mostly small businesses who
provide motion pictures in videocassette form to the public, but even more importantly, the
customers - millions of Amencans who look to home video for a wide variety of affordable
and convenient family entertainment.
ill. H.R. 1248'S RECOGNITION OF MORAL RIGHTS THREATENS OUR THRIVING
FILM INDUSTRY
Along with the other members of CACC, VSDA strongly opposes H.R. 1248
because applying moral rights to motion pictures sets a dangerous precedent and
threatens our thriving U.S. copyright system. We are concerned that H.R. 1248 is sought,
at least in part, to strengthen the artist's economic bargaining power vis-a-vis the studios
121
with "moral rights." To the extent this is true, the Act could threaten the constitutional
goal of promoting the production and dissemination of copyrighted works and the
traditional practices and relationships that are fundamental to the daily operation of
copyright intensive industries in the U.S.
If writers or directors are given 'moral rights," they could insist that their films be
letter-boxed, rather than "panned and scanned." Letter-boxing is the technique used to
present a film on a square TV screen by diminishing the size of the picture, leaving thick
black lines across the top and bottom of the screen. Anyone who has ever spent any
time in a video store can attest to the fact that, generally, the public finds letter-boxing a
distracting interference with their enjoyment of the film. In addition, writers and directors
could prevent conversion of films to videocassette in any format, claiming that both letter-
boxing and panning and scanning adulterate the "artistic integrity" of their films.
Writers and directors could also leverage their "moral rights" to increase
compensation. The studios would pass on that increased cost of production to
distributors and, in turn, to video retailers. We - the retailers - would have to absorb that
increased cost (although our margin of profit is far smaller than those of screenwriters and
directors) and pass it on to our customers.
Finally, negotiations over "moral rights" could lead to very substantial delays in the
release date of a videocassette. That is the most likely outcome for many films. Almost
122
five years passed before "E.T." was released on video because of such negotiations; not
every film has the remarkable longevity of that picture. For most films, delay could
significantly reduce the market demand because more recently publicized films tend to
displace consumer interest in older ones.
The gravity of these concerns is part of the reason the Committee for America's
Copyright Community came together - to ensure the continued vitality of the American
copyright system. The potential harms outlined above demonstrate that embarking the
U.S. "moral rights" regime in the area of films, sets a dangerous precedent and threatens
our currently thriving marketplace of copyrighted works. Proponents of this legislation
have not demonstrated a compelling public interest to justify such a radical departure from
traditional copyright law which has produced a flourishing creative industry. The
remainder of my testimony will focus on the strength of our current system and the threat
posed by proposals such as H.R. 1248.
IV. AMERICA'S COPYRIGHT SYSTEM IS THRIVING.
The existing system for distributing films through theatres, home videocassette,
television and cable broadcasts has been an unparralled success in making these films
widely accessible to the public. It is the envy of the world. This is also the case for the
rest of America's copyright industries.
123
Copyright industries are one of the largest and fastest growing segments of the
U.S. economy. They contribute more to the U.S. economy in terms of value added to
Gross Domestic Product (GDP) than any single manufacturing sector and more than most
industrial sectors. In 1993, they accounted for 3.7 percent ($238.6 billion) of U.S. GDP.
The U.S. leads the worid in entertainment, news, business infonnation, books
magazine publishing, sound recording, motion pictures, advertising, video and other film
products, computer software packaging, and virtually all other areas of copyrighted works.
Our country's global preeminence in copyright works is reflected in 1 992's foreign sales,
which exceeded $39.5 billion, an increase of more than 9% from 1991.
Here are some examples of America's preeminence in the copyrighted works
arena:
• American films dominate theatres and TV screens throughout the worid. In 1 992,
U.S. films returned an estimated $4 billion in surplus balance of trade.
• In 1993, woridwide revenues from ail media - theatrical, television, Pay-TV and
home video - were $20.4 billion, up 7% (1.4 billion) from 1992.
• The U.S. recording industry is one of the most influential, creative and visible
industries in the worid. In 1993, U.S. record companies generated $10 billion in
domestic sales, and worldwide record sales reached $30.5 billion. As a trade
commodity, foreign sales of U.S. sound recordings accounted for an estimated
$12.3 billion.
• The U.S. is the worid's largest market for printed products and the second largest
exporter of printed products, with 1993 shipments of more than $4 billion. .
124
V. THE MARKETPLACE AND CONTRACTUAL AGREEMENTS PROMOTE OUR
THRIVING SYSTEM
We believe the success of our copyright system is attributable, in large part, to the
fact that our copyright law establishes an economic framework to encourage the creation
and dissemination of new works. First, the Act gives creators the financial incentive to
devote resources and energy to producing creative works. They know they will have the
opportunity to secure financial compensation for the exclusive rights granted them under
the Act.
Second, the Copyright Act provides the predictability and certainty that business
activities will be governed by the objective four comers of business agreements. Finally,
the Act allows owners and users the commercial flexibility to devise and implement their
own business relationships to make works available to the public. This flexibility has
allowed copyrighted works to be made available to the public through a wide range of new
media and delivery systems.
H.R. 1248, with its burdensome labeling and notification requirements, runs counter
to the long-standing practice in the U.S. that business relations should be governed by the
marketplace - a system under which the copyrighted works industries have thrived.
In addition to the voluntary film labels, directors, screenwnters and
cinematographers routinely negotiate contractual terms regarding the work to be
125
performed, including compensation and residuals. Similarly, adaptations made to a film
following its initial release are clearly an appropriate subject for negotiation. Through
avenues of both collective and individual bargaining, directors, screenwriters and
cinematographers are able to effectively bargain on these issues.
The collective bargaining agreement provides a bundle of rights to every director,
regardless of his track record or whether the film he makes is a success. These
agreements also give every director the right to participate in the fiim-to-video adaptation.
For example, in 1987 negotiations, the DGA and the Alliance of Motion Picture and
Television included a contract provision requiring producer consultation with a director
regarding adaptation techniques.
Other copyright industries also rely on the marketplace and contractual
agreements. H.R. 1248 is clearly a first step toward a moral rights regime which could
stymie technological innovation, bring the disthbution of copyrighted works to a standstill
and strike a devastating blow to the predictability and certainty that is critical to the
copyright system.
VI. ENACTMENT OF H.R. 1248 WOULD SET A TERRIBLE PRECEDENT WITH
DEVASTATING IMPLICATIONS FOR THE US. COPYRIGHT COMMUNITY.
A motion picture is a collaborative effort derived from the creative energy of
multiple parties. Similarly, books, magazines, sound recordings, newspapers, databases
10
OQ_oe"y Qc c
126
publishing, software pacl<aging and advertisements are collaborative efforts in which
numerous individuals contribute to a creative work. If H.R. 1248-type requirements were
applied to the broad range of these copyrighted industries, a breakdown in the publishing
and distribution of copyrighted works could occur. For example:
• Would a newspaper be unable to submit its daily edition for edited electronic
publication because it was unable to comply with labeling and notification of its 40
reporters?
• Would a magazine miss its printing deadline because it had not been able to notify
a freelance photographer that last year's picture needed to be cropped for this
week's story?
• Would the publisher of a textbook be unable to meet a deadline to update a
textbook to reflect new developments in science, because it could not reach
agreement with the principal editor on the content of the label?
• Would an advertiser be unable to adopt an ad for next month's publication because
of burdensome requirements to notify an array of contributors to the ad, including
writers, graphic artists, creative directors, photographers and others?
• Would a recording company be unable to rearrange the order of an album's songs
11
127
for a second release?
Government-mandated labeling of films may strike some as a narrow exception to
the American tradition of permitting the parties to make their arrangements and settle their
disputes by contract. However, at its heart, this proposal seeks to undo the very system
which carefully balances risk and reward and has made America the undisputed leader in
the creative industries.
VII. THE MARKETPLACE IS THE BEST BAROMETER OF CHANGES MADE TO A FILM
POST-RELEASE.
The marketplace responds to meet consumer needs regarding motion pictures.
Consumers, are the best check on post-publication changes made to copyrighted works.
Consumers find that technical adaptations of a movie - for the T.V. saeen and/or
colorization - enhance their film enjoyment. To meet consumer demand, many movies
today are available on videocassette in both original and made-for-T.V. form. Adaptation
of films give consumers more choice. In fact, there has been no demonstration of
consumer dissatisfaction with the changes that would be regulated under this bill. When
consumers are dissatisfied, they will voice their displeasure and the market will respond
without unnecessary government intrusion.
One way the market responds is by giving consumers a choice. For example, a
consumer can walk into a Blockbuster and rent either the colorized version of
12
128
"Casablanca" or the original black and white version - whichever suits their taste. As you
know, the motto of the home video industry has long been "freedom of choice for
American consumers" - freedom to rent or purchase the films they wish to see, when they
want to see them.
VIII. H.R. 1248 RAISES SIGNIFICANT FIRST AMENDMENT QUESTIONS AND IS
INCOMPATIBLE WITH THE U.S. LANHAM ACT
The First Amendment and the Copyright Clause share the mutual goal of
increasing the flow of information to the public. This important constitutional goal is
thwarted by both the labeling and notification requirements in H.R. 1248. Even in the
case of commercial speech, such as a videocassette box which advertises the film, the
litmus test for the protection of commercial speech, laid out by the Supreme Court in
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York,
447 U.S. 55 (1980), is that the restrictions on speech must be the least intrusive to serve
the governmental interest asserted. The requirements of H.R. 1248 are over- broad,
unnecessary and likely to confuse consumers.
This bill also masquerades as a consumer bill. In fact, it is nothing of the kind.
Modified versions of films are already labeled under the voluntary program to ensure the
consumer is not confused. H.R. 1248 provides that a third party can be designated by the
artistic author to object to a film. Why should a film be labeled based on the opinion of a
third party? Are they looking out for the consumer?
13
129
Finally, Section 43(a) of the Lanham Act already provides remedies to ensure that
consumers are not deceived.
Not only does the Lanham Act exist to protect consumers from misrepresentation, it
also provides remedies for individual artists whose reputation is injured as a result of
misrepresentation. In the event a director, screenwriter, or cinematographer felt that edits
had seriously altered his work, he or she could pursue relief under the Lanham Act. The
landmark case on this subject is Gilliam v. ABC, Inc.. 538 F2d 14 (2nd Cir. 1976). In that
case, the court found that an allegation by Monty Python's creator of a mutilation of his
work - 24 minutes of a 90 minute Monty Python work were edited out by ABC - stated a
cause of action under Sec. 43(a) of the Lanham Act, 15 U.S.C. 1 125(a).
In a March 4, 1 992 letter, then Commerce Department General Counsel Wendell
Wilkie recognized that the broad application of Section 43 has protected authors from
misrepresentation.' It opposed the amendment of the Lanham Act to create additional rights
for film artists.^ In a 1989 Patent and Trademark Office report to Congress, it found that
Section 43 is functioning in the way that Congress intended, as a broad, unifonn law
regulating unfair competition, and that amending the law to cover one specific industry was
' March 4, 1992 Letter Of Commerce Department General Counsel, Wendell Wilkie to
Honorable William Hughes, Chairman of the Subcommittee on Intellectual Property and Judicial
Administration, regarding H.R. 3051 ("Film Disclosure Act of 1991").
'Id.
14
130
inappropriate.' It also concluded that the legislation would frustrate the work for hire doctrine
applicable to motion pictures under U.S. copyright law and film industry contractual practice.
VIII. CONCLUSION
Mr. Chainnan, VSDA and the Committee for America's Copyright Community oppose
H.R. 1248. We submit that the current system works. It works because over the last two
hundred years, it has encouraged the creation and dissemination of works which has made
our copyright industry a national and world leader. It is a system that provides both flexibility
and predictability, allowing parties to create contracts that adapt to meet new technologies.
The industry-wide voluntary labeling program and the collective bargaining agreements are
perfect examples. The marketplace, not Congress, should respond to the consumers.
Congress should continue to let this marketplace operate under its thriving system.
H.R. 1248 is not only a threat to our country's film industry, it is a threat to our entire
copyright system. In order to protect consumers. Congress should continue to reject efforts
to recognize moral rights across a broad range of copyrighted works. Starting down the road
of moral rights will only bring the dissemination of copyrighted works to a grinding halt.
' "Trademark Act of 1946 and Technologies for Alteration of Motion Pictures," 1989
Patent and Trademark OflSce Report to the Subcommittee on Intellectual Property and Judicial
Administration of the House of Judiciary Committee.
15
131
COMMIHEE FOR AMERICA'S COPYRIGHT COMMUNITY
1001 G Street, NW, Suite 900 East
Washington, DC 20001
202/393-1010
Fax: 202/393-5510
CACC Member List
The American Fim Marketing Association
Association of American Publishers
Association of Independent Television Stations, Inc.
Association of National Advertisers
Magazine Publishers of America
Meredith Corporation
Motion Picture Association of America, Inc.
National Association of Broadcasters
The Reader's Digest Association
Recording Industry of America, Inc.
Time Warner, Inc.
Times Mirror Co.
Turner Broadcasting
Viacom International
Video Software Dealers Association
132
Mr. MOORHEAD. Mr. Weller.
STATEMENT OF MICHAEL WELLER, PLAYWRITE, SCREEN-
WRITER, AND MEMBER, WRITERS GUILD OF AMERICA, EAST
Mr. Weller. I have got my remarks beginning with good morn-
ing, Mr. Chairman — I think it is afternoon now
Mr. MoORHEAD. Not quite.
Mr. Weller [continuing]. Members of the subcommittee, and
thank you for sponsoring this hearing on legislation which, in my
view, cuts to the heart of our system. That may sound like pretty
big talk, but in my few minutes here I hope to suggest a reason
why it isn't.
I am not Harrison Ford. I am not Sylvester Stallone. I am not
even Tom Cruise, alas. What I am is one of the legion of folks who
gives them things to say and stories to act in. My name is Michael
Weller.
I am a writer, and I wear two hats. Wearing one, I write movie
scripts; and I do this under the protection of the Writers Guild of
America East. With the other hat, I write plays for the stage. This
work is protected by the Dramatists Guild of America, on whose
governing board I serve.
I have had luck wearing both hats. My plays have won awards
and have been performed all over, here and abroad — most fre-
quently, "Moonchildren," "Loose Ends," "Fishing," "Spoils of War."
And several films I have worked on are held in high esteem —
"Hair" and "Ragtime" in particular. I even won an Academy Award
nomination. In other words, as writers go, I am a happy camper
and a very lucky one.
The term writer has become so commonplace and the word artist
so carelessly flung about in recent years, it might be worth a few
seconds of your time for me to describe what I actually do.
I am a craftsperson, an artisan, a fabricator. I make things. Ex-
actly the way a leather worker makes belts or a furniture maker
makes a chair, I make stories. Instead of leather or wood, my me-
dium is words. I shape them, cut them, polish and trim until I have
made a story that feels interesting, durable and true.
We are here today to discuss the fate of what I make. I will ad-
dress my main remarks to H.R. 989, the Copyright Term Extension
Act, but I would also like to state my position and the position of
the Writers Guild of America East on H.R. 1734 and H.R. 1248, the
Film Preservation and the Film Disclosure Act.
I support any effort to protect my work and my colleagues' work
from mutilation by future owners and exploiters.
I mentioned that I have written the screenplay of a film called
"Hair." Let me relate briefly how the film came about.
It was because of the passion of one man, the director Milos
Forman, a Czech. While living under a Communist regime, he vis-
ited New York. He was young, adventurous and penniless and
ended up sleeping for several nights in Central Park where he was
befriended by a bunch of people called hippies. The anarchy of
those few nights, the joy, the friendship, effected him profoundly.
When he made the film "Hair" years later, it was his way of cele-
brating the spirit of freedom he felt that night, of sending a mes-
sage home to his fellow countrymen still living behind the Iron
133
Curtain, a message that in a free society joy and trust are possible,
unlike the despair and paranoia that haunt a country under totali-
tarian rule.
It came from his heart, this film, and it was intended in a small
way to weaken the hold of an oppressive regime over the minds of
people thirsty for freedom.
The original film had 22 songs. When it was shown on television,
only 11 survived. The other 11 were cut. You might say that what
the audience saw was half "Hair," a celebration of half freedom.
And yet it was called "Hair," the screenplay was credited to me
and the direction to Milos Forman. The most fundamental inten-
tion of the film was violated. The spirit it was made to celebrate,
the energy embodied in its songs, virtually everything it stood for
was violated on television.
I am aware that an argument can be made that it is entirely
within the rights of purchasers to do what they please with the
work they buy. Just as it is arguably within the rights of million-
aire X, who owns a Rembrandt that won't fit the wall where he
wants it hung, to cut 6 inches from the top and a foot from the
side. In fact, he can cut it in half and hang it in two separate
rooms if he pleases. But does he now own two Rembrandts? No,
what he owns is a Rembrandt, mutilated, altered, and destroyed.
The law may support his right, as an owner, to do this, but
should it support his right to advertise it subsequently as the work
of artist Y or Z? I would argue no.
Simple logic tells us that an artist should be allowed to protect
himself from such abuse. If inches are lopped off his work, give him
a chance to warn the public that what they are seeing is no longer
his. Let viewers know, especially discerning viewers who might be
in a position to employ him now or at some future date, that what
they saw doesn't represent his abilities. It may even, in some cases,
harm his reputation.
As regards preservation of our firm heritage, a nation is es-
teemed and remembered mainly by the stories it tells about itself.
America's undeniable contribution to storytelling is film, and films
deteriorate. With them a cherished record of our heritage vanishes.
The Government can help prevent this and for, relatively speaking,
a pittance.
We would not allow the Lincoln Memorial to crumble. We provide
a budget to ensure that Lincoln's memory is honored in the form
of maintenance. I encourage you to throw a few dollars to the
maintenance of another great heritage of ours, film.
Now to my main area of concern, copyright. You have heard tes-
timony describing the hard arguments which are economic. We are
basically hemorrhaging money for 20 years to Europe. I would like
to talk about the testimony to the effect that the artist's work is
his heritage, his legacy, the means by which he hopes to provide
for his children and his children's children.
Even in writing film, for which I hold no copyright, I count on
the duration of the film owner's copyright, which ensures that I am
compensated for future exploitation of my work on television, video-
cassettes and possible merchandising or publication, the use of film
clips and so on. The duration of these rights is my main concern
today.
134
I have two young sons, 8 and 6. They seem proud of the work
I do. One even shows signs of being a bit of a storyteller himself —
on occasion, quite a big storyteller.
If either of them should choose to launch his little boat on the
same dangerous waters as dad, I would like him to expect that at
the end of a lifetime of hard work in the arts he could anticipate
a certain degree of respect for his accomplishments and that this
respect would be reflected in the law.
But, at the moment, I am compelled to explain things as follows:
I make stories for a living. If I made a chair or a shoulder bag or
a pot, it would belong to me for as long as I lived or until I chose
to sell it. It would be mine to give to my children, and this would
become theirs to give to their children and so on.
Instead, I make stories; and they can only belong to my family
until 50 years after my death. When my older son, who is very
smart and curious, asks me why my stories can be taken away
after 50 years I say it is the law.
When he asks why can laws allow things to be taken from peo-
ple, I try to explain what laws are, how they come about and why
we are lucky to live under a system that provides so many ways
to alter and improve them, ways such as the hearing we are in-
volved in today.
But his eyes glaze over at these explanations. He is too young
to understand and the logic is too complicated and, finally, irrele-
vant to the essential issue which is property, be it intellectual or
physical. As I said earlier, H.R. 989 is about something at the very
heart of our system. It is about property.
Imagine for a moment how it would feel if your grandmother had
left you an exquisite quilt of her own making and after a certain
time government officials appeared at your door and said this quilt
has been in your family long enough, now it belongs to the world.
Yet that is exactly what happens to the things I make during my
life.
H.R. 989 is about one thing: property. It is about how soon after
people like me have made what we make can the Government, by
law, allow it to be taken from us. At the moment, they must wait
only 50 years. It is a small thing to ask that we be allowed to keep
it in the family for another 20. It is a modest request. I urge you
to grant it.
Thank you for this opportunity, and I hope your efforts will re-
sult in a change of law that I can hold up to my sons as an exam-
ple of why our system and the extraordinary vigor of the arts it
generates are the envy of the world.
[The prepared statement of Mr. Weller follows:]
135
Prepared Statement of Michael Weller, Playwright, Screenwriter, and
Member, Writers Guild of America, East
Good Morning Chairman Moorhead, Members of the Subcommittee, and
thank you sponsoring this hearing on legislation which, in my view, cuts to the
heart of our system. That may sound like pretty big talk, but in my few
minutes here I hope to suggest a reason why it isn't.
I am not Harrison Ford. I am not Sylvester Stallone. 1 £im not even Tom
Cniise, alas. What I am is one of the legion of folks who gives them things to
say and stories to act in. My name is Michael Weller.
I am a writer with two hats. Wearing one, I write movie scripts. I do this
under the protection of the Writers Guild of America, East. With the other hat,
I write plays for the stage. This work is protected by the Dramatists Guild of
America, on whose governing board I serve.
IVe had luck wearing both hats. My plays have won awards, and have
been performed all over, here and abroad—most frequently "Moonchildren,"
"Loose Ends," "Fishing" and "Spoils of War." Several films IVe worked on are
held in high esteem~"Hair" and "Ragtime" in particular. IVe even won an
136
Academy Award nomination. In other words, as writers go, I'm a happy
camper.
The term writer has become so commonplace and the word artist so
carelessly flung about in recent years, it might be worth a few seconds of your
time for me to describe what I actually do.
I'm a craftsperson, an artisan, a fabricator. I make things. Exactly the
way a leather-worker makes belts or a furniture maker makes a chair, I make
stories. Instead of leather or wood, my medium is words. I shape them, cut
them, polish and trim, until IVe made a story that feels interesting, durable
and true.
, We are here today to discuss the fate of what I make. I will address my
main remarks to H.R. 989 - Copyright Term Extension Act of 1995. But I
would also like to state my position and the position of Writers Guild of
America, East on H.R. 1734 - National Film Preservation Act of 1995 and H.R.
1248 - Film Disclosure Act of 1995.
I support any effort to protect my work from mutilation by future owners
and exploiters. 1 mentioned that I had written the screenplay of a film called
"Hair."
Let me relate briefly how the film came about. It was because of the
passion of one man, the director Milos Forman, a Czech. While living vmder a
Communist regime, he visited New York. He was young, adventiirous and
penniless, and ended up sleeping for several nights in Central Park, where he
was befriended by a bunch of people called hippies. The anarchy of those few
nights, the joy, the friendship, effected him profoundly.
137
When he made the film "Hair" years later, it was his way of celebrating
the spirit of freedom he felt that night, of sending a message home to his fellow
countrymen still living behind the Iron Curtain, a message that in a free society
joy and trust are possible, unlike the despair and paranoia that haunt a
country under totalitarian rule.
It came from his heart, this film, and it was intended in its small way, to
weaken the hold of an oppressive regime over the minds of people thirsty for
freedom.
The original film had twenty-two songs. When it was shown on
television, only eleven survived. The other eleven were cut. You might say that
what the audience saw was "Half-Hair." A celebration of half-freedom.
And yet it was called "Hair," the screenplay was credited to me, and the
direction to Milos Forman. The most fundamental intention of the film was
violated, the spirit it was made to celebrate, the energy embodied in its songs—
virtually everjrthing it stood for—was violated on television.
I'm aware an argument can be made that it is entirely within the rights of
purchasers to do what they please with the work they buy. Just as it is
arguably within the rights of millionaire X who owns a Rembrandt that won't fit
the wall where he wants it hung, to cut six inches firom the top and a foot from
the side. In fact he can cut it in half to hang in two separate rooms, if it
pleases him. But does he now oviTi two Rembrandts? No. What he owns is a
rembrandt, mutilated, altered and destroyed.
138
The law may support his right, as an owner, to do this, but should it
support his right to advertise it subsequently as the work of artist Y or Z? I
would argue "No."
Simple logic tells that an artist should be allowed to protect himself from
such abuse. If inches are lopped off his work, give him a chance to warn the
public that what they are seeing is no longer his. Let viewers know, especially
discerning viewers who might be in a position to employ him now, or at some
future date, that what they saw does not represent his abilities. It may even, in
some cases, harm his reputation.
As regards preservation of our film heritage: a nation is esteemed and
remembered mainly by the stories it tells about itself. America's undeniable
contribution to storytelling is film, and films deteriorate. With them, a
cherished record of our heritage vanishes. The government can help prevent
this and— for relatively speaking—a pittance. We would not allow the Lincoln
Memorial to crumble. We provide a budget to insure that Lincoln's memory is
honored in the form of maintenance. I encourage you to throw a few dollars to
the maintenance of another great heritage of ours, film.
Now to my msdn area of concern today— copyright. You will have heard
testimony describing the ineqmty of our current copyright protection of fifty
years after an artist's death vs. that of the common market countries of
Europe, which lasts for seventy years. You've heard that our current laws
amount to a twenty year gift to the Eiiropean Union, since that's how long they
can use our artists' works for free, while we have to pay for the use of theirs.
We are basically hemorrhaging money, and for nothing in return.
139
You have heard testimony to the effect that an artist's work is his legacy,
the means by which he hopes to provide for his children, and his children's
children. Even in writing film, for which 1 hold no copyright, I count on the
duration of the film owners' copyright which ensures that I am compensated
for future exploitation of my work on television, videocassettes, £ind possible
merchandising or publication, the use of film clips and so on. The duration of
these rights is my main concern today.
I have two young sons, eight and six. They seem proud of the work 1 do.
One even shows signs of being a bit of a storyteller himself. On occasion quite
a big storyteller.
If either of them should chose to launch his little boat on the same
dangerous waters as Dad, I'd like him to expect that at the end of a lifetime of
hard work in the arts, he could anticipate a certain degree of respect for his
accomplishments and that this respect would be reflected in the law.
But at the moment, I'm compelled to explain things as follows. I make
stories for a living. If I made a chair, or a shoulder bag, or a pot, it would
belong to me for as long as I lived, or until I chose to sell it. It would be mine
to give to them, and then it would become theirs to give to their children, and
so on.
Instead, I make stories, and they can only belong to my family until fifty
years after my death. When my older son—who is very smart and curious—
asks me why my stories can be taken away after fifty years, I say "It's the law."
When he asks why can laws take things away from people, I try to
explain what laws are, how they come about, and why we're lucky to live under
140
a system that provides so many ways to alter and improve them— ways such as
the hearing we are involved in today.
But his eyes glaze over at these explanations. He is too young to
understand, and the logic too complicated, and finally irrelevant to the
essential issue, which is property, be it intellectual or physical—as 1 said
earlier, H.R. 989 is about something at the very heart of our system...
Property. Imagine for a moment how it would feel if your grandmother
had left you an exquisite quilt of her own miaking, and after a certain time
government officials appeared at your door and said. This qviilt has been in
your family long enough, now it belongs to the world!?"
Yet that's exactly what happens to the things I make during my life. H.R.
989 is about one thing— property. It's about how soon after people like me have
made what we make, can the government, by law, take it away from us. At the
moment, they must wait only fifty years. It is a small thing to ask that we be
allowed to keep it in the family for another twenty. It is a modest request. I
urge you to grant it.
Thank you for this opportunity... and I hope yovir efforts will result in a
change of law that I can hold up to my sons as an example of why our system
and the extraordinary vigor of the arts it generates, are the envy of the world.
141
Mr. MooRHEAD. Ms. Saffer.
STATEMENT OF JXJDITH M. SAFFER, ASSISTANT GENERAL
COUNSEL, BROADCAST MUSIC, INC.
Ms. Saffer. Good morning Chairman Moorhead and other Mem-
bers of the subcommittee. My name is Judith Saffer. I am the as-
sistant general counsel of Broadcast Music, Inc., referred to as
BMI, and also the president-elect of the Copyright Society of the
U.S.A.
I am here this morning to speak on behalf of the composers,
songwriters, and publishers of BMI who are members of the copy-
right coalition. I wish to express their support for copyright term
extension. I am also authorized to advise the committee that an-
other group with which I am associated, the American Intellectual
Property Lawyers Association, 9,000-plus lawyers in the intellec-
tual property field, have also passed a resolution in support of
copyright term extension.
I am undoubtedly the shortest witness who has testified this
morning; so I, therefore, think it behooves me to have the briefest
comments. In view of the fact that we are short of time, I don't
want to repeat the statements that have been made by other wit-
nesses in support of the copyright term extension. I don't believe
that it would benefit anybody to hear me try to articulate the rea-
sons why the bill should be enacted when others have spoken so
well before me.
It is, in fact, because I sat here listening to those other speakers
that I am reminded of exactly why we are here arguing for copy-
right term extension. I listened to Mrs. Bergman speak so
articulately, and I was again reminded when I listened to Mr.
Weller, just a moment ago, that we have right here, right now, per-
fect examples of why copyright term extension should be enacted.
It is not simply the points that these individuals made, but it is
the way that they expressed them. People such as myself, lawyers,
can make the points, perhaps with all the right words, but not with
the eloquent words that are really persuasive. It is these individ-
uals, the creators, who should be entitled to the protection that this
bill seeks to grant for them. And it seems particularly appropriate
that they should get the same kind of protection that the writers
and creators of works in Europe receive. I can see no reason why
they should be second-class citizens.
One of the things that came up during the course of the question-
ing of the first panel was why the rights of people like Mrs.
Bergman and Mr. Weller should be granted additional protection
versus the claims of entrepreneurs who wish to benefit from their
creativity. And I guess the response that I have to that is that, in
balance, if somebody is going to reap the rewards of their creative
product, shouldn't it be them and their families? Shouldn't it be
them and their children and, yes, even their grandchildren if they
are fortunate to have them?
There is no indication to me as a consumer — and I am sure to
most of you as consumers — that the American public really benefits
more from the exploitation of a work once it goes into the public
domain. When I bought my ticket to see "Phantom of the Opera"
I didn't pay any less money for that than I paid for a ticket for
142
"Miss Saigon" just because one was based on a story that was in
the public domain.
In fact, I think pragmatism tells us that the converse is true. The
entertainment industry, which is the industry from which I come
and can therefore speak on behalf of, is much more likely to exploit
a work that is protected by copyright, given the extremely high
costs of production, distribution, advertising, et cetera.
One of the points that was made by Congressman Conyers in his
introduction really struck home to me this morning. He talked
about being in China and the role that the United States has
played in trying to get other countries to protect intellectual prop-
erty. How can we go to other countries and ask them to grant
strong copyright protection if we are not going to do it right here
at home?
And having promised to be brief, I am going to conclude with just
one statement. I think it behooves us to remember that creators
and copyright owners will not be the only beneficiaries of copyright
term extensions. All Americans will be winners in jobs, in trade,
in the balance of payments flowing into the United States from in-
tellectual property.
Thank you.
Mr. MOORHEAD. Thank you very much.
[The prepared statement of Ms. Saffer follows:]
Prepared Statement of Judith M. Saffer, Assistant General Counsel,
Broadcast Music, Inc.
Legislation has been introduced in both the House and the Senate whose purpose
is to extend the term of copyright in the United States by providing for an addi-
tional twenty-year term of protection for copyrighted works. The primary provision
would extend the term of copyright to life of the author plus 70 years. The proposed
legislation is based on the belief that if works copjnighted in the United States are
to be properly protected internationally, our term of copyright must coincide with
the term of copyright being granted in the European Community ("EC") and many
other countries.
It isn't necessary to outline in detail the many reasons why the current term of
copyright is inadequate. I respectfully refer the Committee to the excellent com-
ments submitted by the Coalition of Creators and Copjrright Owners to the Copy-
right Office in 1993, and to the statements presented by the witnesses speaking for
the Cop)rright Coalition at today's hearing.
On behalf of the composers, songwriters and music publishers represented by
BMI, I would like to stress that extending the term of copyright will help further
the general purpose of the copyright law — to encourage creativity and protect the
rights of authors. In the general revision of the Copyright Act of 1976, there was
a recognition that copyrighted works should receive protection for the life of the au-
thor plus an additional 50 years. At that time. Congress recognized that the prevail-
ing international standard of protection should be adopted by the United States, be-
cause it was believed that this extended protection would help foster creativity,
which ultimately enures to the benefit of everyone, not just the author.
In addition, there is no doubt that there are significant economic benefits to be
obtained by extending the term of copjTight. We are all aware that demand for
United States' copyrighted materials transcends political boundaries and that all
kinds of American intellectual property such as music are exceedingly popular
throughout the world. Foreign pa3Tnents for works of American authorship far ex-
ceed American payments for works of foreign authors. Many estimate that United
States' copyrighted related industries account for more than 5% of the gross na-
tional product and return a trade surplus of billions of dollars. However, a signifi-
cant amount of this revenue could be put in jeopardy because of the principal re-
ferred to as "the rule of the shorter term", which provides that if the duration of
protection in a foreign state is shorter than a member state, that member state may
limit the protection it gives to works of the foreign state's nationals, to the latter's
shorter copyright term. Accordingly, countries could protect works of United States'
143
citizens only for the United States' shorter term of life plus 50 years, while protect-
ing their own works for life plus 70 years. This might result in depriving United
States' authors of 20 years of protection in the international market, eliminating an
important source of revenue.
Finally, the most frequently used argiunent against the United States in trade ne-
gotiations is that we are not in a position to chastise other countries for low levels
of copyright protection when our own law does not provide the high level of protec-
tion in copyright laws of many western countries, particularly those in the EC. In
1976, various arguments were put forth for extending the term of copjright, includ-
ing the need to bring U.S. law in line with the laws of similar countries. It was also
though that extending the term of copyright would allow the United States to be
a leader in international copyright, would discourage retaliatory legislation, and
would facilitate international trade. Twenty years later, these points are even more
valid.
Mr. MOORHEAD. Because we have certainly limited time, I am
going to ask our members to be very brief in their questioning and
certainly no more than 5 minutes, and that will be enforced.
One thing that I wanted to ask, we have a voluntary film label-
ing program that is working to some extent. The film label in the
bill doesn't seem to be satisfactory to many of the others because
it is too long. If we would bring representatives of the motion pic-
ture association and the various groups that are represented here
that are concerned with it together in a hearing room in Washing-
ton and let you start the negotiations and see that it is carried out,
is it at all possible you could come to terms?
You are both making money from the same thing, the sale of the
same films, everything else. Is it possible to come to any kind of
an agreement on this without having legislation passed that en-
forces it? We can put it into legislation if you can come to an agree-
ment. But is it possible for you to come to agreement? Any com-
ments on that?
Ms. COOLIDGE. We tried. We did. And we couldn't get an5rwhere.
Mr. MoORHEAD. Over how long and under what circumstances?
Ms. COOLIDGE. There were several meetings. I was in contact
with our representatives, but I was not involved in the meetings
themselves. But I know that they were very frustrating. And, also,
they did not represent everyone involved. In other words, the art-
ists were represented, but all the producers and distributors were
not 100 percent represented.
Mr. MoORHEAD. Would you give us a list of those people who you
think should be involved?
Ms. COOLIDGE. Boy, would that be a big list. That is sort of the
point I tried to make. One of the points that I tried to make is that
this goes on and on and on. It is a giant pyramid of people that
it affects.
And, second, the producers claimed that they could deliver cer-
tain people and they didn't.
And, third, we do not represent the nonunion artists who are
working in this country. There are a large number of film artists
who do not, for whatever reason, either the size or scale of their
work, are not members of the unions; and we cannot represent
them.
So it is a very large issue, to say nothing of the fact that in the
end the entire concept, as you can see by our testimony here today
of what the label should be, is kind of night and day.
144
Mr. Eves. Mr. Chairman, the view the coaHtion takes and the
view our organization takes, is that there is a vast difference be-
tween a Government-mandated label and a voluntary label. I think
it would be difficult to point to very many programs that exist
today that have achieved a 90-percent compliance rate, as has this
labeling program in barely 20 months that it has been in existence.
Directly to your question, I think that there clearly has been a
responsiveness on the part of the motion picture industry to the
concerns that have been raised here, and this is why a labeling
program was developed.
Now, people will quarrel over the precise language, but certainly
we are willing, and I know the MPAA is willing, to sit down and
continue discussions to see if we can come to some agreement on
that; and we are very willing to do it.
We certainly do not want to see a disparaging label that is harm-
ful for our business and would seem to be designed to tell people
that the product that they are buying is an inferior kind of product,
and we have concerns about that.
One of the points that was made in the testimony a few minutes
ago was that the labeling program that we have in existence right
now has not created any economic hardship on the industry. I
agree completely with that point; but that is because it is a clear,
unambiguous, informative label without taking an arbitrary or a
disparaging kind of position with regard to the film.
As to your question, we are certainly willing to do that.
Mr. MOORHEAD. That voluntary label, if it were mandatory, is
that something that would be satisfactory to you?
Ms. COOLIDGE. No. Because although he may say it is unambig-
uous, we disagree. I don't think it is clear. It is not a clear label,
and it is not unambiguous. For example, what does edited for con-
tent imply? If what it implies is true, meaning that it has sex and
violence removed, that is actually not even involved in this bill.
That editing is something that we do as part of our contract when
we deliver a film made for motion pictures to a television screen.
So that isn't even a part of it.
Second, formatted for your television screen. That sounds like the
companies are doing the consumer a favor rather than removing 50
percent of the image from the picture. So we do have a very dif-
ferent opinion about how does the cinematographer or director feel
about having 50 percent of the image removed from the picture.
Mr. MoORHEAD. Would you be willing to sit down one more time
and see if some linguists among the group can come up with some-
thing that could be agreed to by everybody?
Ms. COOLIDGE. Well, I have to tell you, Mr. Chairman, that we
have been — this request has been made to us several times; and we
did sit down one more time and one more time and one more time
again. So I don't know how to further answer you.
Well — I mean, the problem is we know what the problems are.
We know that the producers, when we sit down and discuss to-
gether, will not consider the idea of the creative authors having an
objection. We know that. There doesn't seem to be any way around
it. And the authors, on the other hand, are extremely emphatic in
their concern for having the opportunity to make this objection.
145
I would like to point out, though, something that I think is obvi-
ous, and I hate to say the obvious. This example of a worst possible
scenario label is almost laughable. Who would put a product out
with this gigantic label on it? Most films would hardly have any
label on them at all. Most films, particularly that go into the video
market on a videocassette, are not altered. The most common alter-
ation that is done would be panning and scanning. That would be
the only common label, and you don't know if it would have an ob-
jection. It might not. It depends on the author.
But a situation in which a film has had, let's say, 20 minutes
taken out plus they have lexiconned it, which is almost ridiculous,
why would you speed up the film if you are cutting out a huge
amount of it? Say you lexicon it to speed it up plus you cut out 20
minutes plus you colorize it. The idea of doing that many alter-
ations on it — I have to say that I would argue with you that maybe
such a radically altered version is an inferior product and maybe
it ought to have a label so that the purchaser of this film would
know that their favorite scene in that movie may not be there.
But, anyway, most films out there today with this voluntary la-
beling situation are not labeled. First of all, syndicated films do not
have labels. Releases prior to 1993 do not have labels. There are
tens of thousands of movies out there that are not labeled under
this voluntary labeling system, which we consider to be inadequate
because it doesn't reach all the distributors and it is an inadequate
label.
Mr. MooRHEAD. Thank you.
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I don't know who was supposed to enforce the time against the
chairman. It is not important, because we are all here because of
the compelling, important nature of this subject.
Let me just throw out a few questions. Throw back a few re-
sponses. Write to me. This matter will not be ultimately disposed
of today. And I loved Mr. Weller's testimony. I think most people
appreciated it. But why don't you tell your son about the Constitu-
tion? It isn't just laws that we flip around. The Constitution, article
one, says that we shall limit it.
And that is where we get to Brother Bono. If you are saying you
want a constitutional amendment, great. Somebody — I am sure
there are people around that will want to do that.
What I would like to do is to find out — we know what kind of
labels we don't want. I would like to see the kind of label we do
want in this subject matter. And I don't think it is accurate to say
that this is a solution in search of a problem.
You have been negotiating, Mr. Eves. You couldn't have been ne-
gotiating about a nonproblem. This is not only a problem, it is a
big problem. And I approach this with great interest and concern.
I am not sure why we do need two labels instead of one.
I think it is important to consider the fact that this moral rights
discussion deriving from French law is very important. I think — I
don't think we need to adopt it in its whole entirety, but I don't
think that it is subject to being dismissed out of hand. I mean, they
have parliamentarians and people who know legal theory just as
we do, and I am interested in pursuing it some more.
146
Another question that occurs to me is, doesn't the Lanham Act
protect creators against excessive edits without proper labeling?
And it seems to me that many viewers, unfortunately, ignore all la-
bels. I am not real optimistic about labels doing much; but in the
appropriateness of this subject matter it seems to me that at least
a prima facie case has been made on the part of the writers that
there ought to be a little bit more to this than volunteerism.
And I close with my observation about letting people voluntarily
correct things never works unless there is a huge pressure behind
saying, "If you don't do it right, brother, we are going to do it for
you." My experience has led me not to leave automobile corpora-
tions to voluntarily do anything or anybody else.
And so, starting with you, Ms. Coolidge, would you make any re-
sponses you might make to these number of questions and observa-
tions that I have? And then I would like to invite Mr. Weller and
Ms. Saffer to do the same.
Ms. Coolidge. Well, I don't know if this is a direct response or
an indirect response, but I do agree with you. I think that our con-
tinued efforts to discuss this over the past few years — and the more
deeply we look into this problem — I think that the simplest pos-
sible solution and the most truthful solution for the public is to
have specific factual labels, including an objection, on these pic-
tures.
So the question I ask is, "how burdensome is the truth?" The
more I hear my colleague over here argue that it is burdensome to
put these very factual labels on the film, the more I wonder does
that mean marketing implies lying about the material you are sell-
ing?
And this is something that there is some history about in mar-
keting. The truth is, if they have a director's cut that they consider
to be a new product, that label is put in very big letters across the
top of the videocassette, and it is considered a positive element in
selling the picture.
Mr. Berman. What do you mean?
Ms. Coolidge. You can re-release a movie, you know, with the
director's cut. There are criterion and other companies who release
laser discs and even in videocassettes where they are going back
to director's cut and using that as a new product and marketing
tool to promote it.
I think that what the ultimate result of labeling, truthful label-
ing and objections, will be is that the public and the artists will
more value the original authentic version of whatever film it is that
they are buying.
Mr. CONYERS. Thank you.
Mr. Weller, any comments?
Mr. Weller. My response is essentially emotional. What we
make is who we are, and it is important to us that it be seen the
way we intend it to be seen. When an outside person intervenes in
that process, it is insulting and it is upsetting. Obviously, it is a
very emotional issue.
And when Mr. Moorhead said that we have to try to get together
and work this out, I think that attempts are so heated when this
process begins that, finally, alas, it may be necessary for legislation
to encourage certain compliance here. I think the issues are just
147
too — ^the interests are just too disparate in both ends. That is my
emotional sense of what is going on.
Ms. Saffer. I am here as a lawyer, and I assume that means
that I am not supposed to be emotional. I am just supposed to be
logical. But I am always tempered by the fact that I am a human
being, and so my comments, really, express both my logical and
emotional reaction.
You addressed a point Mr. Weller made about how he should ex-
plain to his son about the fact that the duration of copyright is lim-
ited. And perhaps
Mr. Weller. That is next year, by the way. He is only 8.
Mr. CONYERS. He is not ready for the Constitution. OK.
Ms. Saffer. I am supposedly
Mr. CoNfYERS. I hate to tell what you my son is asking me about,
and he is only 4. Excuse me.
Ms. Saffer. I have read the Constitution several times over my
lifetime, and I think that the point here is that nobody is trying
to change the Constitution. The Constitution provides for cop3n:ight
protection for a limited time, but it doesn't say what that limited
time should be.
What we are attempting to do is to change the law so that the
limited time will be one that makes sense in our lifetime, and in
these circumstances, in order to provide the best benefits for the
creators and for America as a whole. And as we see it now that
is simply to give us parity with European counterparts, extend an-
other 20 years, not change the Constitution.
Mr. CONYERS. Thank you.
Last but not least, Mr. Eves.
Mr. Eves. Congressman, we are not objecting to a label for a la-
bel's sake. I think the very willingness of the MPAA to try to start
a voluntary program is indicative of our willingness to do that.
We are admittedly very, very protective about this industry. We
are certainly aware of a difference in the way the Americans and
the Europeans have approached the moral rights issue. But in
thinking about those differences, we are also terribly aware of how
successftjl we have been in this country with the movie business.
And the success that we have met with in this country causes us
to ask ourselves the question: Why have we been so much more
successful than those in other countries?
Mr. Conyers. The implication is that you will be less successful
with this labeling? Is that your point?
Mr. Eves. That is very much a concern, sir, yes.
Mr. Conyers. OK.
Mr. Eves. We also think that many of the kinds of issues that
we are talking about today ought to be issues that are discussed
at the bargaining table. When people sit down and they talk about
wages and terms of work and conditions and benefits and residuals
and all of the factors that go into the agreement, this is the place
and venue for artists' rights discussed to occur. If there is an argu-
ment or disagreement later on, it should be resolved by the parties
themselves and we should not ask Congress once again to step into
it.
148
Certainly, from our point of view, we are very willing to sit down
and continue the discussion; and I would certainly urge both sides
to do so.
Mr. CONYERS. Thank you so much. You are talking to the com-
mittee who has jurisdiction over the baseball strike. And some-
times have you got to go back in, unfortunately.
Thank you, Mr. Chairman. You are very generous with your
time.
Mr. MOORHEAD. Mr. Bono.
Mr. Bono. This is tough because it is a practical issue, and it is
an emotional issue. I certainly understand the emotional portion of
it. But you are getting down to philosophy here, and I think what
you have to identify is what your philosophy is.
Basically, what some of you are asking for is a mandate from
Government. And I would think twice about asking the Govern-
ment to mandate your industry in any form. Could it stop here or
could it keep going? Can it go to a script? You are a writer. Where
will that end?
I think the second question I would like to ask Ms. Coolidge.
What language would you like to have on a general basis? I mean,
"This picture is ruined"? I don't know where you want to take it
to.
Ms, Coolidge. Well, outside of reading the label that was up on
the screen, the language has been carefully thought through and
it is listed in the bill and it is kind of a sort of a domino set. You
can have just one tiny label; and the more things that are done to
a movie, the stronger it gets.
Mr. Bono. Is the idea to tell the public that the product is less
than what it was?
Ms. Coolidge. The idea is to tell the public that the product is
changed.
Mr. Bono. Changed?
Ms. Coolidge. Changed from the original version. I really appre-
ciate Mr. Conyer's question. Because the point is — the implication
we keep hearing is we don't want this label because the label will
damage the sale of the product.
First of all — and I think the part of the label that we want, that
our opponents find more damaging, is the objection. But the objec-
tion is very important. If they feel that the objection is so damag-
ing to the product, then obviously the audience should know that
the people who made this piece of art feel that something is wrong.
The logic is very simple.
Mr. Bono. That it has been changed or altered?
Ms. Coolidge. I am talking now specifically about the objection.
The label starts with a change; and that change, by the way, can
be positive. Let's say we are talking about something that could be
sold as a director's cut. Let's say that the original version of a film
that everybody decided on was 1 hour and 54 minutes long, and so
it was a very popular film. And this has happened recently with
"Blade Runner" and "Lawrence of Arabia." Then they go back to
the original director's cut which may be 20 minutes longer. Let's
ask the director to reassemble his first cut, put that together and
market that as the original director's cut.
149
That film would include a label that says this film is not the
original version that was released. It is 20 minutes longer. And
there will be no objection on it. They promote it as the director's
cut, and the artists approve of it, and there is more material.
Mr. Bono. The question got a little complicated. Are you saying
that there should be two versions available at a store, the cut ver-
sion and the director's cut version?
By the way, the director's cut is when a director makes a picture.
It is his work of art or her work of art, and they cut the picture
in the cutting room, and they finalize the picture. At that point,
they turn it over to the studio. In some cases, the director pre-
serves the right to keep that final cut. In other cases, whatever the
contract is, the studio can then recut it if they want.
You know, again, you were compensated for directing the picture.
So you are going down to the basics of compensation, is what I am
trying to tell you that you are starting to dig up. You are paid well.
Ms. COOLIDGE. With due respect, you know, Michelangelo was
compensated for painting the ceiling of the Sistine Chapel; but, on
the other hand, I think he would be upset if it was changed. As
you said, it is a difficult issue.
Mr. Berman. They just restored it.
Ms. COOLIDGE. I know, and I don't know how he would feel about
it. We can't ask him.
At any rate, the point is what we are talking about — we are not
asking, demanding that there be two versions in the video store.
Most of these suggestions become too complicated. All we are ask-
ing for is that when a film is changed from its originally released
version that it bear a truthful and specific label that tells the buyer
exactly what was done.
Mr. Bono. That is why I ask what the language was.
Ms. COOLIDGE. It is in the bill.
Mr. Bono. It is in the bill?
Ms. COOLIDGE. The language is completely outlined in the bill in
a simple, step-by-step manner as to exactly how to label. It's very
simple, how many minutes have been removed. Then, if there is an
objection, that is included; but if there isn't, that is not included.
And then it goes on from there.
The point is, Mr. Bono, that in the end maybe the video store —
and I don't understand why this is burdensome to a video store
even in the slightest — might want to include the original version on
their sales shelf because the original version might have more
value.
Mr. Bono. They are taking the position we paid for this product.
They paid you. They paid the scriptwriter. They may — everybody
was paid. So, from that point of view, who is the owner? I think
that you have to ascertain at some point who owns the product, be-
cause it takes a collaboration of people to create the product, cor-
rect?
Mr. MOORHEAD. I think your time has expired. We have each
taken 3 minutes more than was originally planned.
Mr. Bono. I understand how you feel. It happened to me. And
I produced a picture, and I had to sell it for 350 bucks, and they
cut the picture to shreds. But I knew I had to sell the picture, so
at that point I sold it.
150
Mr. CONYERS. You need protection.
Mr. Bono. We need legislation.
Mr. Berman. I am not sure of the philosophical distinction be-
tween mandating the extension of the copyright term and the no-
tion that it is inappropriate to mandate
Mr. Bono. May I respond to that?
Mr. Berman. Only if it is not on my time.
Mr. Bono. One is paid for and one isn't.
Mr. Berman. In other words, you are not talking about the song
as a work for hire for a film. You are talking about an independent
song.
Mr. Bono. That is true.
Mr. Berman. I think that is a fair distinction.
Mr. Eves, I don't think you should continue to use the argument
that we — we in the sense of whoever all is in the coalition — the stu-
dios, the video dealers, the television stations, the networks — have
out of the goodness of our heart and because it is a right thing to
do come up with an appropriate label for these films.
The fact is, you did it because there was legislation in over the
last 5 or 6 years and it was in that context that those labels ap-
peared. And so already the legislation has had some role. It has
caused you to decide to come to an agreement on a label.
To me, this is sort of a continuum. You start on the far end with
should any of the creators be able to veto this, the noncopyright
holder creators be able to veto this? Should they be able to object
to it? Should it be accurately described?
I can certainly see your concern about disparaging comments af-
fecting the marketability of the product. And I know that were ne-
gotiations. They came fairly close. I think the folks who have la-
beled— the studios and the people who have labeled — have fallen
short of where they were in the negotiation process; and the other
side in this legislation is asking for more. I guess both of these are
to be expected since no deal was worked out.
But what is wrong — if 22 minutes of the film has been cut, say-
ing this film is 22 minutes shorter or 22 minutes have been edited
from the film originally released in the motion pictures? Which is,
by the way, why you are renting it because you heard about it
when it was released in the motion pictures. What is wrong with
that?
Mr. Eves. Mr. Berman
Mr. Berman. Is that a disparaging comment? I guess that is my
question.
Mr. Eves. That statement made in isolation, by itself, no, sir, I
don't think it is.
Mr. Berman. So why haven't you gone — ^why haven't you
agreed — that is a heck of a lot more communicative than "This film
has been modified."
Mr. Eves. What we are testifying today, sir, is the legislation
that begins with a warning label that states this is not the original
product and then it goes through the litany of all the people that
object and the reasons they object.
Mr. Berman. I understand you don't like the legislation, but in
part of your argument you went to the trouble of bringing a tele-
vision set that shows the labels that you are proud of that you have
151
done, quote, voluntarily, unquote. And I am saying what is wrong
with including in your voluntary system, understanding your oppo-
sition to the legislation, the amount of minutes that you have cut
from a film?
Mr. Eves. Sir, I think that, as we indicated, I know that the
MPAA is certainly willing to sit down and to continue discussions.
I recognize that there are legitimate differences of opinion over the
precise language.
Mr. Berman. To your way of thinking, that does not affect the
marketability of your video dealer's inventory, an accurate descrip-
tion of the amount of time that has been cut from the originally
released film? Is that a fair conclusion?
Mr. Eves. The average film today costs $50 million to produce.
Mr. Herman. My question is, does an accurate description of the
amount of time that has been cut from the originally released film
negatively affect the marketability of your product in the video
stores?
Mr. Eves. I believe that one has to take a look at the entire label
in its context.
Mr. Berman. Nothing else for a second, hjrpothetically, except
where the modification has been a shortening of the film, a cutting
of the time of the film, adding or substituting for the modification
the words, "18 minutes has been edited from this film as originally
released." Would that negatively affect the marketability?
Mr. Eves. This is going to be more of a television issue than a
video store issue since it is rare to cut from a video cassette. There
may be a marketability question as to the ability to show the film
on free television in terms of whether it could fill the time slot.
Mr. Berman. I was asking about video dealers at this point.
Mr. Eves. No, as a matter of fact, with the video dealers gen-
erally there is not a situation where there is anjd^hing cut. And, in
many cases, there are more than one version of the film that is
available, including the director's cut. And also some of the studios
are making available the film without the pan and scan technique
used.
Mr. Berman. I am gathering you are saying it would not affect
marketability in the video dealer context.
Mr. Eves. It is not an issue primarily in the video context unless
the language used on the label is disparaging to the product.
Mr. Berman. What about a label that said, this film has been
colorized?
Mr. Eves. Again, in the video area, the label relating to
colorization already appears in this way.
Mr. Berman. Was "Angels in the Outfield" — was that originally
in the color? I just saw it, and I didn't see a label that said it was
colorized.
Mr. Eves. It was made in a color version just in the last 2 or
3 years. It is a remake. It is a relatively recent production.
Mr. Berman. So, it is not a colorized version. I missed the new
one. It came and left without me knowing about it.
Mr. MOORHEAD. The gentleman's time has expired.
Mr. Berman. Thank you.
Mr. Becerra. Mr. Chairman.
Mr. MoORHEAD. The gentleman from California, Mr. Becerra.
152
Mr. Becerra. Thank you.
I think you can see that a lot of us are struggling with this issue,
because I don't believe that legislation doing what either side
would like would ever pass. I think it is too convoluted, too eso-
teric. And it would be difficult to get 218 Members in the House
and 60 Members in the Senate — that there is some good com-
promise out of this. And I think it is unfortunate because I wish
it would be resolved.
Let me ask a question — I will try not to take too much of a side
on this, but let me ask a question of the directors and the screen-
writers and ask why not also include within the list of people who
can raise an objection — actors or other artists who are involved in
the film?
Ms. COOLIDGE. Well, the short answer is twofold. One is that
there is some precedent in Europe as to who are considered to be
the authors of a motion picture. And they vary slightly from coun-
try to country, but we have followed the most standard traditional
approach.
Second, through equally important — and I think that the state-
ments from the Screen Actors Guild that I have submitted, you
know, really prove that — is the traditional relationship of trust be-
tween the people who work on a motion picture — the editors, the
grips, the crew people, makeup, hair, actors — and the director.
They sign on to do a movie with a director, and that director is
making the final decisions as to whether or not that actor's per-
formance is up to snuff or not and whether or not the development
of the character is correct.
And those actors have always had, and continue to have, a rela-
tionship of trust which is a part of taking that job.
So the entire process of making a film is to develop it and to fol-
low it in terms of production, realizing one vision. It is very, very
difficult to make a movie with more than one person saying what
kind of a movie you are making. And that is why the director tradi-
tionally has had the final decisions.
Mr. Becerra. It's only natural, I would want to be there with the
screenwriters and directors, but I would like to see the other artists
involved. Because whether you bargained away your part as an
actor to be a part of that decisionmaking process, I think the same
comparison could be made between the directors and the producers.
And coming from a union home, where I wish my father had more
say as to his working conditions and the things that he produced,
I wish there were a better way to try to get others involved.
Ms. Coolidge. But here is the twofold problem or issue: One is,
they haven't asked for it. That is very simple. They have supported
this bill, and they have supported the bill as it stands, which is fur-
ther proof that they trust that if a director's work is hurt the ac-
tor's work is hurt. It is very simple.
We also all know, and this has been a ploy of some of our oppo-
nents, that if you put more and more and more people into the ob-
jection portion of this bill it will be impossible — impossible to create
anything realistic that would work.
But there really is precedent for this in Europe, and we could
further educate you about that.
Mr. Becerra. Thank you for that.
153
Let me ask Mr. Eves a question. At what point do you reach that
threshold where you, in fact, have to in some degree undermined
the character or the artistic value of a film by cutting 20 minutes
or by cutting out too much of the film because you have to fit it
on a TV screen?
At what point is it true that the work that is being displayed is
no longer the work that has been promoted that is causing people
to want to go view it?
Mr. Eves. Congressman, I wouldn't honestly know how to pos-
sibly answer that question, because I think in the eye of the person
looking at it you will probably get a different version.
There are certainly a lot of creative artists and directors who ob-
ject to the panning and scanning of a film to fill up the television
set. There are other people, customers of ours, who come into a
video store when they see an original cut of a movie and return the
tape telling them the tape must be defective because they had
these big black bands on the top and the bottom of their picture.
So it is an awful lot in the eye of the beholder, and I would not
presume to know exactly at what point that happens. I guess that
is going to be up to each individual to decide.
Mr. Becerra. I think you just illustrated the problem for this
particular issue. No one really knows what is sufficient or what is
a sufficient compromise for us to go with. And if you all can't sit
down, I don't think that you can expect us, who have less knowl-
edge than you do about the industry and the product and the artis-
tic value, to come up with something that anyone would be satis-
fied with.
I think it is unfortunate because I know that you all tried very
hard a couple of years back, and I am in a quandary.
Mr. CONYERS. Will the gentleman yield briefly?
Mr. Becerra. I will just finish the statement. Of course, I will
yield to the ranking member.
I wish you all could find a way. I think there must be some mid-
dle ground. I think that at some point the art has been disparaged
or has been changed so much so that the artistic value or character
has been altered; and the consumer, because of I think a truth in
advertising or a customer's right to know, should understand that.
But I also believe that it is difficult with the legislation in hand
to define or give us the understanding of what an objection — what
constitutes a proper objection on the part of a director. At what
point does it reach the threshold where the director has the right
to object because the character has been changed? And I think it
becomes very difficult, and you are asking us to do something sub-
jective which you all are having a difficult time doing yourselves.
I yield to the ranking member.
Mr. Co^fYERS. My admiration for my colleague from California
leads me to know that frequently we make the decisions that ex-
perts who have far more knowledge than us — that is why we hold
hearings.
Mr. Becerra. That is why Grovemment is so disparaged.
Mr. Berman. That is why we wanted the job.
Mr. CONYERS. The witnesses come to us as experts and, guess
what, we make the decisions. That doesn't mean it is right, but
that is why the hearing is held.
154
Mr. Becerra. Nor does it mean that the decision we make is the
best one for the industry, but we will strap the industry to live
with it. And I suspect at some point we will find one sector of the
industry coming back and saying you did a darned awful job and
try to fix it.
Ultimately, we are going to get guidance, the expert assistance,
from the industry; and it just helps us if we had more of a concrete
answer from the industry as to where we would go so that we could
focus on trying to define what we can do, if anything needs to be
done at all.
Mr. CONYERS. You are up to it.
Mr. Becerra. Thank you, Mr. Chairman. And I thank all the
panelists for being here.
Mr. MOORHEAD. I want to thank all the panelists and all the peo-
ple who have come and provided our audience today. And I want
to thank the four other members of the panel that have come over
here for this hearing. This has been a good hearing. I am sorry we
kept you so long. But I think it has been important that we have
gone over the subject and given it the time it deserves.
Thank you.
The subcommittee is adjourned.
[Whereupon, at 12:46 p.m., the subcommittee adjourned.]
COPYRIGHT TERM EXTENSION ACT OF 1995
THURSDAY, JULY 13, 1995
House of Representatives,
Subcommittee on Courts and
Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, in room 2237, Ray-
burn House Office Building, Hon. Carlos J. Moorhead (chairman of
the subcommittee) presiding.
Present: Representatives Carlos J. Moorhead, F. James Sensen-
brenner, Jr., Howard Coble, Bob Goodlatte, George W. Gekas, Mar-
tin R. Hoke, Patricia Schroeder, and John Conyers, Jr.
Also present: Thomas E. Mooney, chief counsel; Mitch Glazier,
assistant counsel; Veronica Eligan, secretary; Betty Wheeler, mi-
nority counsel; and Susie Park, intern.
Mr. Moorhead. The hearing will come to order.
Today the subcommittee is conducting a second day of hearings
on H.R. 989, the Copyright Term Extension Act of 1995. H.R. 989
would extend the term of ownership of an individually copjn^ighted
work from the life of the author plus 50 years to the life of the au-
thor plus 70 years, and the works for hire from 75 to 95 years. This
change will more closely resemble the new directive implemented
by the European Union member states, who are among the largest
users of our cop3nrighted works.
Last time the Congress considered and enacted copyright term
extension legislation was in 1976. At that time the House report
noted that copyright conformity provides certainty and simplicity in
international business dealings. The intent of the 1976 act was
twofold: first, to bring the term for works by Americans into agree-
ment with the then minimum term provided by European coun-
tries; and, second, to assure the author and his or her heirs of their
fair economic benefits derived from the author's work. The 1976
law needs to be revisited because neither of these objectives is cur-
rently being met.
In October 1993, the European Union adopted a directive man-
dating copyright term protection equal to the life of the author plus
70 years for all works originating in the E.U., no later than the
first of July this year. The E.U. action has serious trade implica-
tions for the United States.
The United States and the European Union nations are all sig-
natories of the Berne Copyright Convention, which includes the so-
called rule of the shorter term, which accords copyright protection
for a term which is the shorter of life plus 70 years or the term
(155)
156
of the copyright in the country of origin. Once this directive is im-
plemented, United States works will only be granted copyright pro-
tection for the shorter life plus 50-year term before falling into the
public domain in Europe, whereas all of the others will continue on
for the 70 years.
The main reasons for this extension of term are fairness and eco-
nomics. If the Congress does not extend to Americans the same
copyright protection afforded their counterparts, American creators
will have 20 years less protection than their European counter-
parts— 20 years during which Europeans will not be paying Ameri-
cans for their copyrighted works. Europeans buy more works of
American artists than they do of any other country's nationals. Any
imbalance would be harmful to the country and work a hardship
on American creators.
I would like to be introduced — to introduce our ranking member
at this time, but all of us are having two or three markups or hear-
ings this morning all going on at the same time. I have two mark-
ups going on right now, plus this hearing, and I know Howard Her-
man and Mrs. Schroeder and Barney Frank and many of the other
members have the same problem.
I will now introduce Jim Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
This subcommittee has important work to do, and this bill is an
important issue that is before the subcommittee. We've had a num-
ber of hearings on copyright and patent legislation, and I expect
that the subcommittee will take action on much of this legislation.
There is one piece of legislation, however, that hasn't had any ac-
tion, and that's H.R. 789, which relates to background music and
licensing fees that have to be paid by owners of retail establish-
ments. That's just as important as this legislation is, and there
have been some negotiations that have been going on between par-
ties on both sides of the issue. Another negotiation session is sched-
uled for July 28, a little bit more than 2 weeks from now.
Let me say that the first two negotiation sessions have gotten no-
where in terms of resolving the problem of retailers having to pay
licensing fees for having the radio on or having the television on.
I will not look at this bill favorably unless there is some legislative
action on H.R. 789 or something similar to it, because leaving the
music licensing fee issue the way it is now in the passage of this
bill will simply allow the licensure organizations like ASCAP and
BMI to harass retailers for another 20 years. I don't think that
that's acceptable. It is not acceptable to the one-quarter of the
House of Representatives that have cosponsored H.R. 789, and it
seems to me that this issue has to be dealt with as a package.
And I thank the chairman for giving me this time.
Mr. MOORHEAD. Our ranking minority member of the full Judici-
ary Committee, John Conyers, is here. John.
Mr. Conyers. Good morning, Mr. Chairman.
I'm just trying to get the import of my colleague from Wisconsin's
remarks as I came in. I guess this is what they call in the music
business a tie-in. You don't get one without the other. What I want
to do is look at his bill, though, and find out what the other is, and
I'm sure I'll have a reaction to it. I don't know how happy I'll be,
157
but I'd like to reserve any other additional comments that I may
make for later on in the hearing.
Thank you.
Mr. MOORHEAD. The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. I'd just like to thank the chairman for holding
these hearings. I don't have any comments at this time. Thank you.
Mr. MooRHEAD. Our first witness will be Ms. Marybeth Peters,
who is the Register of Copyrights for the United States. From 1983
to 1994, Ms. Peters held the position of Policy Planning Advisor to
the Register. She also served as Acting General Counsel of the
Copyright Office, Chief of both the Examining and Information Ref-
erence Divisions. Ms. Peters holds an undergraduate degree from
Rhode Island College and a law degree from George Washington
University. She has served as a consultant on copyright law at the
World Intellectual Property Organization and authored the "Gen-
eral Guide to the Copyright Act of 1976."
Welcome, Ms. Peters.
Our second witness on the first panel will be Ambassador
Charlene Barshefsky, the Principal Deputy U.S. Trade Representa-
tive. Ambassador Barshefsky has been instrumental in achieving
important intellectual property trade agreements, most recently
helping to formulate an extensive intellectual property rights
agreement with China. She was the key policymaker and nego-
tiator of the Comprehensive Framework Agreement with Japan
which serves to protect American copyright owners in an important
consumer market. Ambassador Barshefsky has also led the admin-
istration's effort to develop bilateral regional trade initiatives in
South and Central America, with particular emphasis on intellec-
tual property rights in Brazil and i^o-gentina.
Welcome, Ambassador Barshefsky.
Our third witness on the first panel is Commissioner Bruce Leh-
man, the Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks of the United States.- Commissioner Leh-
man served as counsel to this subcommittee for 9 years and as
chief counsel for a number of those years. Mr. Lehman has been
a key player on intellectual property issues between the United
States and Asia and the European Union, and has also headed nu-
merous delegations to consider intellectual property issues at the
World Intellectual Property Organization.
Welcome, Commissioner Lehman.
We have written statements from our first three witnesses,
which I ask unanimous consent be made a part of the record, and
I ask you each to summarize your statements in 10 minutes or less.
I ask that the subcommittee hold their questions for all three wit-
nesses until they have completed their oral presentations.
We will begin with Ms. Peters.
STATEMENT OF MARYBETH PETERS, REGISTER OF COPY-
RIGHTS AND ASSOCIATE LIBRARIAN FOR COPYRIGHT SERV-
ICES, LIBRARY OF CONGRESS
Ms. Peters. Thank you.
Mr. Chairman, members of the subcommittee, I am pleased to
offer my comments on H.R. 989, the Copyright Term Extension Act
of 1995.
9!).9R7 QA _ A
158
In 1993, before any legislation was introduced, the Copyright Of-
fice initiated a study on duration of copyright which included a
hearing as well as a long comment period. I have submitted a de-
tailed analysis and statement for the record. Much of what we
learned is reflected in that statement. I will speak briefly now on
what I believe are some of the more important factors to be
weighed in considering this legislation.
This legislation, which appears in part to be an attempt to have
equivalent terms of protection with the important countries of the
European Union, would increase copyright terms of all works, in-
cluding existing works, for 20 years. This would be a significant
change in our copyright law, and it would have a significant impact
on our society.
Our Constitution gives Congress the power to grant to authors
exclusive rights for limited times to promote the progress of science
and the arts. Thus copyright is granted to promote the public inter-
est by stimulating creativity and by stimulating the dissemination
of knowledge. Authors are given control over their works as an in-
centive to produce. This control, however, is for a limited time.
After this time, the work becomes part of the public domain and
is available to be used by society as a whole.
When considering the constitutional mandate, a number of ques-
tions are raised. First, is this legislation in the public interest? Will
it encourage authors to create and publishers to disseminate new
works? If so, at what cost? Specifically, what will be the effect of
freezing the public domain for 20 years? Second, does this legisla-
tion violate the limited times provision of the Constitution?
In attempting to evaluate how extending the term would stimu-
late creativity, it is difficult to see how moving from a term of life-
plus-50 to life-plus-70 will encourage more authors to write. It
could, however, provide additional income that would finance the
production and publication of new works. Moreover, I believe there
is a broader public interest.
Mr. Chairman, in your statement introducing this bill, and again
today in your opening remarks, you emphasized the importance of
having harmonization of copyright terms of protection among our
major trading partners. As you said, conformity vis-a-vis the copy-
right term, as well as conformity in other areas, provides certainty
and simplicity in international business dealings.
You also noted that American authors should be given the same
protection afforded their counterparts in Europe. I agree with this
assessment. The importance of granting American authors the
same protection as that granted to authors elsewhere has long been
a position of the United States. When the copyright term was first
extended in 1832, this was the argument on which the increase
was based. The rapidly expanding international markets for copy-
righted works, especially in light of the global information super-
highway, supports such an effort.
Moreover, the reason for amending our law at this time is to
bring us into conformity with that of the European Union. Unless
the United States extends its terms, our authors and other copy-
right owners will be denied money that they otherwise would be
entitled to receive.
159
The Copyright Office supports H.R. 989 for two reasons. One, in
the global information society, we have a need to harmonize copy-
right terms throughout the world, and we believe that life-plus-70
will become the international norm. Two, as a leading creator of
copyrighted works, the United States should not wait until it's
forced to increase the term. Rather, it should set the example for
other countries.
We support this bill largely on international grounds. However,
we are not unmindful of some negative impacts that this bill would
have in the United States. Enactment of this bill in one stroke
freezes works from coming into the public domain for 20 years.
This involves works copyrighted between 1920 and 1940. I am con-
cerned about the effect that this will have on libraries, archives,
and educational institutions who are striving to improve American
education and who serve as the guardian of our Nation's cultural
heritage.
Libraries, like the Library of Congress through its National Digi-
tal Library efforts, are attempting to bring unique materials, in-
cluding those still protected by copjoight, to the American edu-
cational community. The Library of Congress has been diligent in
seeking copyright permissions for its digital library projects. How-
ever, much of the unique materials, photographs, prints, manu-
scripts, letters are very difficult to determine the copyright status
and the copyright terms of such works. Finding the current copy-
right owner is almost impossible. The Library has spent thousands
of hours searching copyright records and seeking permissions.
Thus, considering the need to balance the rights of copyright
owners with the benefits to be gained by the public, the Copyright
Office opposes an additional term of 10 years to the unpublished
works covered by section 303. The authors of these works died be-
fore 1953. Many libraries, archives, and historical societies, as well
as authors and publishers, have been anxiously awaiting January
1, 2003, when these works are scheduled to enter the public do-
main.
We also suggest a very narrow exemption for the additional 20-
year term to provide instructional materials to American schools by
nonprofit libraries, archives, historical societies, and the like. In
addition, there are other issues that were raised by four library as-
sociations in their letter of July 11 and by Dr. Billington, the Li-
brarian of Congress, in his letter of July 12. The problems identi-
fied are preservation of materials and the ability to provide users
with access of those materials.
These problems are not caused by this bill. They are, however,
exacerbated by it. This is because the older the work is, the harder
it is to find the copyright owner and the more it costs to obtain per-
mission to use the work.
Libraries and archives play a critically important role in our
country's social and cultural welfare, as well as its economic
growth. The unique materials in their collections must be pre-
served and made available to our citizens.
I would like to see these problems solved, and I hereby offer the
services of the Copyright Office and the Library of Congress to ad-
dress the issues of, one, the unbeatable copyright owner; two, pres-
ervation by libraries of these unique materials; three, access to col-
160
lections of works that are no longer commercially available or via-
ble. The Office has served this committee in the past in the revi-
sion of the Copyright Act of 1909, and it served it again recently
in the Copyright Reform Act, when through an advisory committee
recommendations were made to solve a number of problems that
had been identified with the registration system. I believe we can
serve this same useful role now.
I would welcome the opportunity to discuss with you and your
staff the specifics of how the Copyright Office can assist the sub-
committee in its work on these important issues. Thank you for the
opportunity to testify here today.
[The prepared statement of Ms. Peters follows:]
161
Prepared Statement of Marybeth Peters, Register of Copyright and
Associate Librarian for Copyright Services, Library of Congress
H.R. 989 proposes to extend the basic United States copyright term by twenty years in
order to reflect increased life expectancy and to harmonize the U.S. copyright term with that of
the European Union. The most prominent change ordered by the EU Directive is the requirement
that member states recognize a general duration standard of life of the author plus 70 years.
With respect to countries outside of the EU, the Directive applies the rule of the shorter term,
meaning countries having a shorter term will be limited to the term established by the country
of origin.
The development of a global information infrastructure where consumers can purchase
directly from creators located anywhere in the world is, in itself, a strong argument for
harmonization of copyright term. Other valid arguments include the loss of revenues for U.S.
authors by the application of the rule of the shorter term and the fact that the existing terms may
not cover an author during his or her lifetime, a widow or widower, or one generation of heirs.
This is the first time that the United States has considered extending the copyright term
since the 1976 act went into effect on January 1, 1978. A key consideration is whether H.R.
989 satisfies the constitutional goal of fostering the creation and dissemination of intellectual
works.
While the Copyright Office generally supports H.R. 989, it does oppose adding ten years
to the term of unpublished works covered by 17 U.S.C. 303. We also question whom the
beneficiary of the extra 20 years should be, especially in cases where there is no existing
termination right. Moreover, we condition our support on the solution of certain problems faced
by libraries and educational institutions with respect to preservation, access and appropriate
nonprofit educational uses that are beyond fair use. We have made several suggestions
concerning approaches for resolving those issues, including creating a licensing system for
authors and owners who cannot be located, developing guidelines under section 108 for material
that can be used without payment for nonprofit educational purposes or creating an exemption
for nonprofit uses related to instructional activities in the extended term.
Solutions to these problems might be more forthcoming if this subcommittee directed the
parties to work these problems out. The Copyright Office would be willing to assist in
facilitating agreement on possible solutions to the problems of preservation and access of older
copyrighted works.
r:\mk\HR989.one
162
Chairman Moorhead, joined by Rqiresenutives Schroeder, Coble, Goodlane, Bono, Gekas,
Berman, Nadler, Clement, and Gallegly, ' introduced H.R. 989 on February 16, 1995. The bill known
as the "Copyright Term Extension Act of 1995" would add twenty years to the basic U.S. copyright term,
bringing it to life plus seventy years. Senator Hatch introduced an identical bill, S. 483, on March 2,
1995. In part these bills are a response to a 1993 Directive of the European Union (EU) on harmonizing
copyright term; ^ the thrust of this Directive is the requiremenl that member states recognize a general
copyright duration standard of life of the author plus 70 years. It is clear that the EU Directive on Term
will ultimately result in a longer tenn for most, if not all, European nations, since countries wishing to
join the Union or the European Economic Area will also be required to go to life plus 70. Also certain
non-European countries already have longer terms or will consider extending them in the future. With
respect to countries outside of the EU, the Directive applies the rule of the shoiter term, meaning
countries having a shoner period of protection will be limited to the term established by the country of
origiiL '
Since then four other representatives have signed on to H.R. 989: Becerra. Gordon, Quillen and Conyers.
Council Directive 93/98, 1993 OJ. (L 290/9), [hereinafter EU Direaive on Term].
EU Directive on Tenn, an 7.
dirr\dunuion.loc
July II, 199S
163
Under current U.S. copyright law, the EU mandatory adoption of the rule of the shoner term
will mean that popular U.S. works will not get the benefit of a longer term in any of the EU countries.
Other countries with longer terms than life plus SO may also move to make any period of protection
longer than SO years reciprocal. The question of harmonizing copyright term in all countries is critical
for U.S. rightsholders. Consequently, with some reservations, the Copyright Office generally supports
term extension. Those reservations concern the preservation and access to unpublished and other works
that are no longer commercially available.
Congressman Moorhead, in introducing H.R. 989, noted that times have changed since duration
was considered in the 1976 revision effort:
The last time the Congress considered and enacted copyright term extension
legislation was in 1976. At that time the House report noted that copyright
conformity provides certainty and simplicity in iiuemational business dealings.
The intent of the 1976 act was two-fold: Pint, to bring the term for works by
Americans into agreement with the then minimnin term provided by European
countries; and second, to assure the author and his or her heirs of the fair
economic benefits derived from the author's work. The 1976 law needs to be
revisited since neither of these objectives is being met *
My statement summarizes the background and history of copyright duration in the United States,
analyzes the changes proposed in H.R. 989 in light of existing U. S. copyright law and the EU Directive,
notes and evaluates the major arguments for aixl against term extension in light of the considerations the
House Judiciary Conmiittee weighed when extending the copyright term in 1976, aixl sunmiarizes certain
questions and issues in the conclusions.
141 Cong. Rec. E379 (daily ed. Feb. 16. 1995) (statement of Rep. Moorhead).
dirr\<lunboii.loc
July II. L893
164
II. HISTORY OF DURATION OF COPYRIGHT TERM IN UMTED STATES LAW
The history of the duration of copyright protection in the United States reveals a strong
international influence. When it came time to adopt the first copyright law, Congress looked to the
English common law system, the model it knew best. England viewed intellectual property as a property
right but also viewed it in certain functional terms — as a device "to promote creative endeavors, on the
one hand, and to ensure maximum public access to the benefits of these endeavors on the other. " ' Early
U.S. copyright statutes adopted English duration standards. As discussed below, the United States
abandoned the standard of one fixed term of protection, renewable for an additional fixed term in 1976
when it adopted the life of the author plus SO years, standard of the Berne Convemioa ' At that time
most developed and iixlustrialized countries with the exception of the United States, ' belonged to Berne
and the Berne minimum term was life of the author plus 50, years.
A. DEVELOPMENT OF FEDERAL COPYRIGHT LAW
The first federal copyright law enaaed in 1790 stems from the constitutional clause giving
Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times
' Sam Ricketson. The Bcme Convention for the Protection of Literaiv and Anistic Works: 1886-1986 321
(Centre for Cotmnercial Law Snidies Queen Mary College 1987).
' See Convention concerning the Creation of an International Union for the Protection of Literary and Artistic
Works (Sept. 9, 1886, revised in 1908, 1928, 1948, 1967, 1971). Berne Convention art. 2(8) (Paris text)
[hereinafter Berne Convention!.
' China and the Soviet Union were not members of Benie at that time either.
dirr^unaonloc
July 11. 1995 3
165
to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." ' The
constitutional clause thus sets out two goals "to foster the growth of learning and culture for the public
welfare, and the grant of exclusive rights to authors for a limited time is a means to that end." '
Although the primary purpose of the copyright law is to foster the
creation and dissemination of intellectual works for the public welfare,
It also has an important secondary purpose. To give authors the reward
due them for their contribution to society.
These two purposes are closely related. Many authors could not devote
themselves to creative works without the prospect of remuneration. By
givmg authors a means of securing the economic reward afforded by the
market, copyright stimulates their creation and dissemination of
intellectual works. Similarly, copyright protection enables publishers and
other distributors to invest their resources in bringing those works to the
public. "•
Authors would not be able to continue to create unless they earned income on their finished
works. The public benefits not only from an author's original work but also from his or her further
creations. Although this truism may be illustrated in many ways, one of the best examples is Noah
Webster who supported his entire family from the earnings on his speller and grammar during the twenty
years he took to complete his dictionary.
1. The Fnglish Stafirt* nf Anii»-
The Statute of Anne, enacted in England in 1710, was the first copyright statute to gain wide
anentioa Its provisions served as a model not only for the United States, but many other nations as well.
US. Const art I, §8, cl. 8.
' REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW,
HOUSE COMM. ON THE JUDICIARY. 87TH CONG., 1ST SESS., COPYRIGHT LAW REVISION (Pan 1. 5)
(Comm. Print 1961). [hereinafter Copyright Law Revision Part 1].
"* Id. at 5-6. These principles are noted in nx>re detail in H.Rep. No. 2222, to Congress, 2d Sess. on the
Copyright Act of 1909. 'Not thai any panicular class of citizens, however worthy, may benefit, but because the
policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention
to give some bonus to authon and inventors." I^
dirrxdunboaloc
luly II. I99S 4
166
This historic legislation was adopted at the insistence of publishers, who were experiencing increasing
problems with literary piracy.
The Statute of Anne granted an author and his assigns an original term of 14 years from the date
of publication, plus a second term of 14 years should the author be living at the expiration of the first
term. " In 1814, England changed its duration standard to a term of 28 years plus the remainder of
the author's namral life, should he or she be living at the expiration of the first term. '^ In 1842,
England again extended the copyright term to 42 years or the life of the author plus seven years,
whichever should be longer. " England was one of die original signatory couiuries of the Berne
Convention and has been a member since December 5, 1887. The original Berne text left the copyright
term to the member country in order to encourage countries to join. In 1908, however, the Berne
Convention went to a term of life of the author, plus SO years. " Nine out of fifteen Berne countries
had gone to life plus fifty by 1908. '^ In the Copyright Act of 1911, England extended copyright
duration to the life of the author plus SO years. '*
2. Deyelonment in Colonial America.
Under the Articles of Confederation, 12 of the original 13 states enacted copyright statutes. Of
these 12 states, six applied the duration standard of the Statute of Anne: an original term of 14 years from
" 8 Anne, ch. 19. 1710.
" 54 Geo. 3, ch. 156.
" 5 & 6 Vict, ch 45.
" Berne Convention an. 7(1) (Berlin text). This term was made compulsory in Brussels in 1948.
" Ricketson. supra oote 5, at 325.
" I & 2 Geo. 5, ch. 34.
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the date of first publication, plus a second term of 14 years should the author be living at the expiration
of the first term. " The other six states adopted single terms ranging from 14 years to 21 years. '
3. The 1790 CopvriEfat Act.
In the deliberations over the drafting of the U.S. Constitution, there appears to have been near
unanimity among the framers that copyright and patent should fall within federal powers. James Madison,
in writing the Federalist Pai?ers. only devoted one paragraph to the Copyright-Patent Clause in which he
observed that the "utility" of the provision could "scarcely be questioned." One of the early tasks
performed by the first Congress was passage of the Copyright Act of 1790. " This historic legislation
established an initial copyright duration term of 14 years, to be followed, should the author still be living,
by a 14 year renewal term. This term was the same as the Statute of Anne's and also that of six states
imder the Articles of Confederation. In 1831, Congress increased the term to 28 years, with a renewal
term of 14 years. ^'' The purpose of increasing copyright duration was to place "authors in this country
more nearly upon an equality with authors of other countries.' " England had, as previously meiuioned,
changed its term in 1814 to 28 years plus life if the author was still living at the end of the 28th year.
" James J. Guinan, Duration of Copyright. Coovrieht Office Smdv No. 30 (1957), Subcomm. on Patents.
Tradgmaric and Copyrights of the "^at^ rnmm on the Judiciary. 86th Cong. 2d Sess., COPYRIGHT LAW
REVISION STUDIES 1 (Comm. Print 1960).
" Massachusetts, Rhode bland, and Virginia adopted a single term of 21 yean. New Hampshire adopted a
single term of 20 yean, and North and South Carolina adopted a single term of 14 years.
" 1 Stat. 124 (1790).
'-' 4 Stat. 436(1831).
" Repon of the Comminee on the Judiciary of the House of Representatives, 7 Register of Debates, appendix
CXIX.
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B. SIGMnCA>fT 20TH CENTURY REVISIONS OF COPYRIGHT TERM
1. The 1909 Copyright Act.
When Congress increased the U.S. copyright term in 1909, Berne had already adopted life of the
author plus 50 years for the basic copyright term. The new U.S. provision created a basic copyright term
of 28 years from the date of first publication or registration, plus a renewal term of 28 years. " Early
drafts of this legislation proposed that the basic copyright term be life of the author plus 50 years.
Copyright proprietors advanced two arguments in support of the life plus 50 duration. They argued that
authors were increasingly outliving the copyright protection in their works and that it was unfair for
authors to lose their protection in their old age. Second, the life plus 50 standard was gaining increasing
acceptance as the international standard of protectioa
Although little organized opposition was raised against the life plus 50 term. Congress was not
willing to accept such a radical departure from what it saw as American copyright tradition. The U.S.
renewal system permitted works that were not commercially valuable and, therefore, not renewed to go
imo die public domain after 28 years. The increase in the renewal term from 14 years to 28 years
appears to have been the congressional response to copyright proprietors' concerns that the term should
be longer. A renewal mechanism was preferred over one set term because it gave authors who sold their
rights for less than full value a second chance to secure a more equitable return in the renewal period and
because it placed works that were not renewed in the public domain where they could be used by
anyone."
" 35 Stat 1075, 17 U.S.C. §24.
" H.R. Rep. No. 2222, 60th Cong. 2d Sess. (1909).
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2. Copyright Revision.
Congress was finally willing to embrace the international standard of life plus 50 when it revisited
the issue in deliberations leading to the 1976 Copyright Act. In the initial report prepared "to pinpoint
the issues and stimulate public discussion, " •* the Copyright Office proposed a duration of 28 years from
first public dissemination, coupled with a renewal term of 48 years. This would bring the maximum term
from 56 to 76 years. " The Copyright Office Report noted two general approaches to measure the
copyright term (1) from the dissemination of the work or (2) from the death of the author. It concluded
that 'a term based on dissemination has the greater advantages for the public, and that the principal
purposes of a term based on the death of the author can be achieved by a sufficiently long term based on
dissemination." ^* The Office's proposal was widely criticized; the parties preferred a life plus 50 year
standard. ^^ By 1964, the working draft proposed one copyright term, life plus 50 years for most works. ^'
Debate continued, however, on how long this term should be and what should be done about corporate
works and subsisting copyrights.
'* Copyright Law Pan 1, at Preface, p. i.
•' Id. at 50.
'* Id. at 48-49 (emphasis added). One reason the Report recommended measuring the term from dissemination
was thai approximately 40% of works were 'corporate' and many individual works were HittAminati'H anonymously.
" SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION
OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL, HOUSE COMM. ON THE JUDICL\RY. 89TH
CONG.. 1ST SESS.. COPYRIGHT LAW REVISION PART 6 (Comm. Print 1965) [hereinafter Copyright Uw
Revision Part 6]; REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE
US. COPYRIGHT LAW: DISCUSSIONS AND COMMENTS, HOUSE COMM. ON THE JUDICIARY, 88TH
CONG.. 1ST SESS.. COPYRIGHT LAW REVISION PART 2 (Comm. Prim 1963) [hereinafter Copyright Uw
Revision Pan 2].
■' PRELIMINARY DRAFT FOR REVISED U.S. COPYRIGHT LAW: DISCUSSIONS AND COMMENTS
ON THE DRAFT, HOUSE COMM. ON THE KJDICL\RY, 88TH CONG.. 2D SESS.. COPYRIGHT LAW
REVISION PART 3, 19-20 (Comm. Print 1964) [hereinafter Copyright Law Revision Pan 31.
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It is interesting to review those earlier discussions. The opposing arguments are set out by two
well known copyright experts. The first said:
I am in favor of, generally speaking, short rather than long terms. I've
never yet heard any case, except the fact that it's done differently
elsewhere, for a longer term, and if you're going to measure by life, then
life-plus-25. That takes care of the minority [sic] of children, and
indeed their education, even these days. The only possible case it doesn't
take care of is the case of a very young author who dies leaving a very
young wife, and my only answer to that is if she hasn't been able to
remarry in the course of 25 years perhaps this copyright shouldn't
necessarily continue to support her. *'
The second said:
I would prefer that protection be for at least 100 years, rather than 76,
when there is a renewal. It is not unreasonable to allow an author and
his heirs to keep and enjoy property rights in the work he has created for
at least that long — particularly since others will be exploiting his work
for profit after he has been divested of it '•
3. 1976 Act
Congress reviewed all of the views expressed during the revision period when determining
the appropriate U.S. copyright term and ultimately opted for a basic term of life plus 50 years. The
House Judiciary Committee summarized seven reasons for changing the copyright term:
1 . The present 56-year term is not long enough to insure
an author and his dependents the fair economic benefits
from his works. Life expectancy has increased
substantially, and more and more authors are seeing their
works fall into the public domain during their lifetimes,
forcing later works to compete with their own early
works in which copyright has expired.
-' Copyright Law Revision Pan 2 at 90 (staiement of Professor Ralph S. Brown).
'° Id. at 3 16 (statement of Irwin Kaip).
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The tremendous growth in communications media has
substantially lengthened the commercial life of a great
many works. A short term is panicularly discriminatory
against serious works of music, literature, and an, whose
value may not be recognized until after many years.
Although limitations on the term of copyright are
obviously necessary, too shon a term harms the author
without giving any substantial benefit to the public. The
public frequently pays the same for works in the public
domain as it does for copyrighted works, and the only
result is a commercial windfall to certain users at the
author's expense. In some cases the lack of copyright
protection actually restrains dissemination of the work,
siiKe publishers and other users cannot risk investing in
the work unless assured of exclusive rights.
A system based on the life of die author would go a long
way toward clearing up the conAision and uncertainty
involved in the vague concept of "publication," and
would provide a much simpler, clearer method for
computing the term. The death of the audior is a
definite, determinable event, and it would be the only
date that a potential user would have to worry about
All of a particular author's works, including successive
revisions of thent, would fall into the public domain at
the same time, thus avoiding the present problems of
determining a multitude of publication dates and of
distinguishing "old' and "new" matter in later editions.
The bill answers the problems of determining when
relatively obscure authors died, by establishing a registry
of death dates and a system of presumptions.
One of the worst features of the present copyright law is
the provision for renewal of copyright A substantial
burden and expense, this unclear and highly technical
requirement results in incalculable amounts of
unproductive work. In a number of cases it is the ^ause
of inadvertent and unjust loss of copyright Under a
life-plus-50 system the renewal device would be
inappropriate and unnecessary.
Under the preemption provisions of section 30 1 and the
single Federal system they would establish, authors will
be giving up perpetual, unlimited exclusive common law
rights in their unpublished works, including works that
have been widely disseminated by means other than
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July 11. 1995 10
172
publication. A statutory term of life-plus-50 years is no
more than a fair recompense for the loss of these
perpetual rights.
A very large tnajority of the world's countries have
adopted a copyright term of the life of the author and 50
years after the author's death. Since American authors
are frequently protected longer in foreign countries than
in the United States, the disparity in the duration of
copyright has provoked consider able [sic] resentment
and some proposals for retaliatory legislation. Copy-
righted works move across national borders faster and
more easily than virtually any other economic commod-
ity, and with the techniques now in common use this
movement has in many cases become instantaneous and
effortless. The need to conform the duration of U.S.
copyright to that prevaleru throughout the rest of the
world is increasingly pressing in order to provide
certainty and simplicity in international business
dealings. Even more important, a change in the basis of
our copyright term would place the United States in the
forefront of the ituemational copyright community.
Without this change, the possibility of future United
States adherence to the Berne Copyright Union would
evaporate, but with it would come a great and immediate
improvement in our copyright relations. All of these
benefits would accrue directly to American and foreign
authors alike. "
" H R. Rep. No. 1476, 94th Cong., 2d Sess. 134-5 (1976).
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II. ANALYSIS OF H.R. 989
Before one can compare the provisions of H.R. 989 with existing law and the EU Directive on
Term, it is first necessary to review U.S. term provisions and those established by the EU Directive.
A. EXISTING U.S. LAW
One of the major underpiimings of the 1 976 Copyright Act was the adoption of a single copyright
term for works that are created and fixed in a tangible medium of expression for the first time on and
after January I, 1978. For most works, the basic copyright term is life of the author plus an additional
SO years after the author's death. This protection attaches automatically from the momeiu of creatica In
the case of a joint work by two or iix>re authon who did not work for hire, the term lasts for SO years
after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous
works (unless the author's identity is revealed in Copyright Office records), the duration of copyright is
75 years from fint publication or 100 years from creation, whichever is shorter. "
The United States has not considered extending copyright term siitce 1976. In the 1976 Act, with
an eye to possible fumre adherence to the Berne Conventioa the United States adopted a basic term of
life plus fifty years for works created after January 1, 1978. Consequently, when the United States joined
the Berne Convention in 1989, its basic term was already consistent with BeriK.
Before we joined Berne, there was some discussion about the term for anonymous and
pseudonymous works, and the Ad Hoc Working Group on U.S. Adherence to the Berne Convention
concluded that §302 (c) was 'incompatible with Berne because those such works published more than 50
" 17 U.S.C. §§302-305.
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July 11, 1995 12
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years after creation would be protected for less time than Berne requires. " " However, no changes were
made to the copyright term provisions in the act implementing Berne. '*
B. THE EU DIRECTIVE ON TERM
When some European countries began to form what is now the European Union, " certain
member countries already had longer terms than the Berne minimum or differeiu terms for ceruin works. ''
At a hearing in Brussels on October 24, 1980, these coumries began to consider what differences in
copyright term would mean in light of a single internal market " Some commentators have observed
that the EU really did not discuss whether or not the term should be longer but simply discussed whether
the term should be harmonized. "
1. Purpose.
On October 29, 1993, the EU issued its Directive on Term requiring member states to implement
the terms of the Directive by July 1, 1995. The Directive requires a basic term of life plus 70. The
" Final Repon of the Ad Hoc WorUng r.mnp on U.S. Adherence to the Berne Convention. 10 COLUM.-
VLA J. L. & ARTS 581 (1986).
" Berne Convention Implementing Act, Pub. L No. 100-568, 102 Stat. 2853 (1988).
" We primarily use the term European Union rather than the European Community.
" Germany had the longest term life + 70, but Spain's term was life + 60 and France had a life plus 70 term
for musical works. Other countries had made extensions to compensate for war loss. Ricketson, supra note 5, at
336.
" Silke von Lewinski, EC Proposal for Directive Hanpnm-nng rhe Term of Protection of Copyright and
Certain Related Rights. 23 IIC 785, note 1.
" Id. at 786. See also Peter Wienand, Copyright Term Harmonisation in the European Union. 40 Copyright
World (May 1994). But see Proposal for a Council Directive HarmnnJTing the Term of Proteaion of Copyright
and Cenain Related Rights Commission (92) 33 final.
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purpose of the EU Directive is to harmonize the terms of copyrighted material and related works among
member countries.
Although the adoption of life plus 70 years as the standard may appear somewhat surprising since
most nations of the EU had a term of life plus 50 years, the EU gave a number of reasons for moving
to a term of life plus 70 years including that since the average lifespan in the Community had risen, the
life plus 50 years standard was no longer adequate to cover an author and two generations of his or her
descendants, " and that harmonization to life plus 50 years would have required some rightsholders to
lose existing rights, and the European Union was philosophically opposed to such a result *'
2. Comparison of spedflc EU provisions with U. S. law and H.R. 989.
Although adoption of life plus 70 years has received the most attention in the United States, other
provisions in the Direaive should be examined in light of existing U.S. law and the H.R. 989 proposab.
As in U.S. law, the term for a joim author is measured from the death of the last surviving author.
a. Anonvmoua worka. In the case of anonymous or pseudonymous works, the
Directive establishes a term of 70 years after the work is lawfiilly made available to the public. *'
Current U.S. law establishes a term of 75 years from first publication or 100 years firom creation,
whichever expires first *' H.R. 989 would increase this term to 95 years from fint publication or 120
years from creation, whichever expires first
" Protection of two succeeding generatioiu is the standard goal recognized in Berne. §ss E^ Directive on
Term, Recital (5).
" EU Directive on Term. Recital (S) & (10); P. Wienand, Copyright Tenn Hanaon\TMi<}^ in the European
Union. 40 Copyright World 24, 25 (May 1994).
" EU Direaive on Term. art. 1, para. 3.
" 17 U.S.C. 5302(c).
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Julyll. I99S 14
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b. Legal entity as initial riehtsholder. Where a member state law vests rights in
an entity other than in an individual author, the Directive provides a term of 70 years measured from the
year of publication. " The compatible provision in U.S. law is the works for hire one which establishes
the term as 75 years from first publication or 100 years from creation, whichever expires first. " H.R.
989 would increase this term to 95 years ftom first publication, or 120 years from creation, whichever
expires first.
c. Audiovisual works. E^ovisions governing audiovisual works are considerably
different. In the United States, audiovisual works are generally works made for hire. This is not true in
Europe. Under the Directive, the term is determined by the lives of four individuals. *' The Directive
states the term shall expire 70 years after the death of the last of the following persons to survive "the
principal director, the author of the screenplay, the author of the dialogue, and the composer of music
specifically created for use in the cinematographic on audiovisual work." ** The Directive's term for
audiovisual works is at least equivalent to and may be longer than existing law or the proposal in H.R.
989. *'
d. Rights protected as neiriibopfg fr rplated rights. The Directive also specifies
terms for neighboring rights. The Directive gives producers of sound recordings 50 years from first
" EU Directive on Term, ait. 1 , para. 4. The laws of most member states of the EU do not recognize the
work for hire doctrine; rights generally vest in individual authon. However, it does exist in certain countries and
for certain works, e.^., collective works, and paragraph 4 coven those exceptions.
** 17 U.S.C. 1302(c).
" EU Directive on Term, ait 2, para. 1 .
** Id. EU Directive on Term, an. 2, para. 2.
" A number of the comments received in RM 93-8 confuse the term for motion pictures which is spelled
out in an. 2 of the EU Directive on Term. The provision in an 1 , para. 4 for collective works or where a legal
person is designated as the rightsholder.
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publication or first communication to the public, whichever is first. " In the United States, where sound
recordings are protected generally as works made for hire, they are under copyright for at least 75 years.
The Directive gives broadcasting organizations protection for 50 years from the date of first transmission. "
Finally, the Directive generally gives performers protection for 50 years from the date of the
performance. '"
e. Protection of prevlouslY unpubUshed work. Article 4 of the Directive provides
a special term of protection to anyone who publishes a previously unpublished work whose copyright term
has otherwise expired. " The term of protection is 25 years from the time when the work is first
lawfully published or lawfully communicated to the public. The intent is to induce for early publicatioa "
The only corollary in U.S. law is §303, which provides that where a work is created but not published
before January 1, 1978, and is published by December 31, 2002, the copyright term is extended for 25
years. H.R. 989 extends the term for these works by ten years. If such works are published by the end
of 2002, there is another 35 years of protectioa
3. Effect of EU Directive on other countries.
The most prominent change ordered by the Directive is the requirement that all member states
recognize a general copyright duration standard of life of the author plus 70 years and that, with respect
to countries outside of the EU, each state is to apply the rule of the shorter term: Foreign countries
*• M-, art. 3, panL 2.
" li, art 3. pan. 4.
'• M-, art 3, part. I.
" An. I, para. I seu the first term, life of the author and 70 yean after his or her death, tunning irrespective
of the date a work is lawfully made public.
" Lewinski. suora note 36 at 801. n. 65.
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July II. 1993 16
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having a shoner term will be limited to the term established by the country of origin. " U.S.
rightsholders reaction to this was immediate — their position was that the U.S. had to raise its term of
protection to avoid imposition of the rule of the shorter term.
The Directive mandates that these changes should be made by July 1, 1995. Although that goal
has not been met, the United Kingdom has already proposed amending its law to the longer term and
other EU members are expected to comply. In addition, countries that belong to the European Economic
Area must also adopt the Directive.
There are a number of countries that are seeking eventual membership in the European Union
or the European Economic Area. Such couiuhes iiKlude Poland, Hungary, Turkey and the Czech
Republic. In preparation for this, it is likely that these coumries will amend their copyright laws to reflect
the requirements of the Directive. There is also some indication that other coumries that are in the
process of adopting new copyright laws will adopt a life plus 70 standard. For example, the new
Slovenian copyright law provides for a term of life plus 70.
With respect to the Berne Convetuion, it is unclear whether life plus 70 will be adopted in the
near future. ^ However, the likelihood increases as more countries move to a life plus 70 term.
B. SECTION BY SECTION ANALYSIS OF H. R. 989
The approach taken by H.R. 989 is basically to amend the existing copyright provisions on term
by adding 20 years to the date in the provisioa The bill does not propose any changes to ownership of
rights in the copyright of the extended term.
" EU Directive on Term, art 7.
" Life plus 70 was on the original agenda of the exercise begun in 1991 to adopt a Protocol to the Berne
Convention. However, at the meeting of the Governing Bodies in September, 1992 there was agreement to reduce
the scope of the possible protocol to 10 critical issues. Life plus 70 was removed from the agenda. A number of
countries, not including the United States, have suggested that this topic be put back on the agenda.
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1. Duration of works created on or after January i , |<yT»
Under H.R. 989, the basic copyright term would be extended from life of the author plus 50 years
to life of the author plus 70 years. The extended term would vest in either the original author, or, if rights
have been transferred, in the transferee. All transfers on works created and fixed after January 1, 1978,
are subject to termination generally after 35 years; " therefore, the extended term could be reclaimed
by the author or his or her heirs. "
The term for works made for hire, anonymous and pseudonymous works would go from a term
of 75 years from the year of first publication or 100 years from the year of creation, whichever expires
first, to 95 years from the year of first publication or 120 years from creation, whichever expires first
2. Renewal term.
For works which had secured federal copyright protection prior to January 1, 1978, the 1976
Copyright Act retained the old system of computing the term with one major change: the length of the
second renewal term was increased to 47 years. Under pre- 1978 law, copyright was secured either on
the date a work was published or on the date of registration if the work was unpublished. In either case,
the copyright lasted for a first term of 28 years from the date it was secured. The copyright was eligible
for renewal during the 28th year of the first term. If renewed, the copyright was extended for a second
term of 28 years. If not renewed, the copyright expired at the end of the first 28-year term. The addition
of 19 yean to die second renewal term by the 1976 Copyright \a was subject to an author's right of
termination. "
" 17 U.S.C. §203. A work made for hire does not have a termination right under section 203.
'* Currently, no transfers conceniing works created and fixed on or after January I, 1978, have aged the
requisite 35 years to be subject to termination.
" 17 use 1304(c).
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In June, 1992, Congress amended the law to make copyright renewal registration optional. "'
As a result, works securing federal copyright protection between January 1, 1964, and December 31,
1977, are automatically renewed on the last day of the 28th year unless the owner of the renewal right
registered a renewal claim with the Copyright Office earlier in that year.
Under H.R. 989, the second renewal term would consist of 67 years in place of the current 47
years. In instances where the renewal right has been transferred, the 20 year extension under H.R. 989
would pass to the transferee. In instances where the time period for exercising termination under section
304 has already lapsed, there would be no additional opportunity to terminate the transfer.
3. Sound recorriiny;^ fiW before FehTary '^1 '**^'^
For pre-February 15, 1972, sound recordings under section §30 1(c), the federal copyright law
would preempt state law on February 15, 2067, instead of February 15, 2047.
4. Works created but not published or copyrighted before January 1. 1978.
There is a special duration provision for works in existence but not published or copyrighted on
January 1, 1978. '' These works were automatically given federal copyright protection beginning on
January 1, 1978. The typical standards of life plus 50 years or 75-100 year terms generally apply to these
works. However, all works in this category are guaranteed at least 25 years of federal copyright
protection. The existing law specifies that in no case will copyright in a work of this type expire before
December 31, 2002. If the work is published before that date, the term will extend another 25 years
through the eixl of 2027.
" Public Uw 102-307, 106 Stai. 264 (1992).
" 17 U.S.C. §303.
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a. H.R. 989. Under H.R. 989, the minimum term of protection guaranteed an
unpublished work will be extended 10 years to December 3 1 , 2012. If the work is published by that date,
the term is extended another 35 years to December 31, 2047.
b. Cnmmmt pg proposed extension of section 303. While the Copyright Office
generally supports passage of H.R. 989, it does not endorse the proposed extension of section 303. For
unpublished works created before January I, 1978, section 303 of the copyright law already provides a
minimum copyright term running through December 31, 2002. Essentially, the works covered by this
provision are works by authors who died before 1952 which remain unpublished through the year 2002.
In his thorough analysis of copyright term, Sam Ricketson discussed the considerations involved
with unpublished works and questioned whether they should be subject to temporal limits or be protected
indefinitely until publication takes place. He mentioned two possibilities: to protect for the same term
as published works and add no additional term if disclosure occurs subsequently or to allow protection
indefinitely and then to grant a fiirther fixed term once the work is disclosed. Ricketson asserted that the
disadvanuges to the public of the second approach may be cured if post-publication protection is
relatively brief. " He also noted
A more substamive objection, however, is that where
ownership of the copyright and ownership of the
unpublished work itself have become separated, this can
place severe restraints upon later users, in particular
those engaged in research and scholarship. "
We believe that the unpublished works covered by section 303 have social, educational and
historical significance. In the 17 years since the effective date of the 1976 copyright revision act, they
" Sam Ricketson, The Copyright Term. 23 nC 776 (1992).
" Id. at 776.
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have not been published. Extending the term will not benefit the copyright owners of such works; there
are, however, broad public benefits to be gained when these works enter the public domain. Many
institutions, including the Library of Congress, have photographs, letters and manuscripts that can and
will be made available to the public. For example, the Library of Congress has a unified collection on
the American composer Edward A. Mac Dowell (1861-1908). The rights in all of the material in that
collection except his correspondence, can be cleared, and there is no way to locate the heirs of those
leners sent to Mac Dowell. This collection is being prepared for distribution to the public in 2003;
nothing would be gained by restricting such dissemination until the year 2013.
m. ARGUMENTS FOR AND AGAINST TERM EXTENSION
Although there was no pending legislation, the Copyright Office published an announcement in
the Federal Register on July 30, 1993. that it would be conducting a study on copyright duration and also
announced a public hearing to be held on September 29, 1993. In addition to publication in the Federal
Register, the Copyright Office contacted user groups about the hearing. Perhaps because legislation did
not appear on the horizon, only representatives who strongly supported increasing the term of protection
appeared. They represented lyricists and composers, music publishers, and the motion picture industry. "
The Copyright Office extended its comment period to ensure that all views would be heard. Later other
" The National Music Publishers Association (NMPA) (Comments 1 and 99); Music Publishers Association
(MPA) (Comment 2); Intemational Confederation of Music Publishers (ICMPXComment 4); Songwriters Guild of
America (SGA) (Comment 6); David Nimmer (Comment 7); Wade Williams Productions (Comment 23); Nashville
Songwriters Association International (NSAI) (Comment 24) Joint Comments of the Coalition of Creators and
Copyright Owners (CCCOXComments 3 and 98). But s^ Comment 15 filed by the Recording Industry Association
of America (RIAA). The RIAA is primarily interested im removing the "distinction between author's rights and
so called neighboring ngbts...' and asserted that diere were far more pressing issues than duration. Id. at 3-4
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views were presented primarily by users of public domain motion picnires and law professors. " All
of these comments are considered in the discussion below of arguments for and against extension of
Copyright term.
Staff shortages kept the Office from completing this smdy, but we kept all of the materials and
have made them available to the public on request. Moreover, we will be glad to provide a copy of the
transcript of the hearing and comments should the subcomminee want them for the record.
Having reviewed both sides of the argument presented to the Copyright Office in 1993 and those
made before this subcomminee at the June 1 hearing on H.R. 989 in California, one can only conclude
that the issue of term extension is more complicated than the sometimes oversimplified or overblown
argtiments made on both sides would lead one to believe. Instead of an exhaustive retelling of those
arguments, the Office has prepared a chan identifying most, if not all, of them. ^ We choose here to
review the major arguments on term extension in light of the 1976 considerations that are still relevant
and to evaluate other considerations.
" One individual educator opposed term extension (Comment 5 1 ). Another commentator opposed extension
because he felt it would cause great harm to the Gutenberg Project, which makes public domain works available
internationally via electronic media. (Comment 83). A coalition group of law professors also opposed extension.
(Commem 19). Sgs jIjs Comment 136, Society for Cinema Studies . Another individual commentator deplored
not being able to put deteriorating materials on the Internet to promote public access. (Commeu 26). Some
individual authors, producers, scriptwriters and filmmakers also opposed extension. §^ e.g., Comments 7S, 77,
86, 128, 130 and 160. [All of the other commentaton who opposed extension were either those who want to use
public domain motion pictures or warn to have access to these films].
** This chart is attached to die statement as an Appendix.
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A. REVIEW OF ARGUMENTS BASED ON CONSmERATIONS WEIGHED BY TfflS
COMMITTEE IN 1976 "
Four of the seven considerations that led the Judiciary Committee to conclude that copyright terms
should be extended m 1976 are still relevant today. Each of them is discussed below with a brief
summary and evaluation of the arguments on that particular consideratioa
I. Public Benefit and limited Times.
a. Arguments. Many of the opponents arguing against term extension have raised
the legal problems associated with removing property from the public domain. ** H.R. 989, however,
does not propose applying term extension retroactively to restore copyrights in works already in the
public domaia " Opponents also argue that term extension provides the public with no benefits and
imposes substantial costs, " and freezes the public domain for 20 years. They assert that diminishing
the public domain stifles creativity especially in the production of derivative works and they cite examples
of contemporary works based on materials in the public domain. " Some opponents also assert that
" S^ text at pages 9-1 1 supra for the complete text of these provisions.
** Sm, e.^. Commenis 127, 123, 123, 121, 122 and 120. These and others reveal concerns about restoration
of films under the North American Free Trade Agreement or any other law.
" Some auibon' groups, however, will likely argue that this should be done, citing the recent restoration of
foreign copyrights under the Uruguay Round Agreements Act or the North American Free Trade Agreement Since
H.R. 989 does not prt>pose to restore works in the public domain, this staiemem does not address the host of
complex policy issues raised by restoration of U.S. copyrights.
" Sm Comments 8S and 97 at 8-9.
** Sm Comment 19 'Comment of Law Professors on Copyright Office Term of Protection Snidy ' [hereinafter
Comment 19 law professon]. Comment 1 1 (Fairness in Copyright Coalition) at 2 'We are concerned with NEW
authors, NEW creativity, and the promotion of learning. New authors need a rich and diverse public domain to
create and educate.' Id. Seg alss Comment 19. at 12; Comment 147, at 2; and Comment 148, a I.
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term extension would violate the "limited times" provision of the copyright clause of the constitution
which authorizes Congress to give rights for "limited times. " "
Most of those who presented arguments to the Copyright Office in 1993 against the copyright
term extension were small movie/film companies and coalitions who were concerned that adding twenty
years to the copyrighted life of a work would deny access to the general public and constrict the creative
efforts of those who use public domain materials in the creation of new works. They also argued that
term extension would be detrimental to the preservation of twemieth century culture. They urged that
extension will make a large portion of our motion picture heritage inaccessible. ''
Proponents argued that extension of the copyright term will not affect the creation of new works
and that there is no evidence that works created from public domain materials are any cheaper. They also
argued such works may be of lesser quality. This argumeiu was made most forcefully by Irwin Karp
during the revision that led to the 1976 Act:
In fact, the advantage of the "public domain' as a device for making
works more available to the public is highly overrated; especially if
availability is equated with 'low cost' to the public In contrast with the
fact that the prices charged the public do not necessarily come down, or
the supply of the work increase, when copyright terminates — the paper-
back book is evidence that copyright protection is not incompatible with
mass circulation at low cost to the public ^
See Comment 19, at 10.
' SSfi> SC-t Comment 17 (John Beltoo, Member Natioaal Film Preservation Board). Another argument this
group made wu that films in tiie pubic domain are more likely to be preserved aod presented to the public than
copyrighted works. They assert this is so because many holden of such films control the only available copy, which
is often lost or destroyed, and almost never made available to the public. Extending the term or decreasing it will,
of course, have nothing to do with whether the holder of the only available copy releases it. Sss g.g., Comments
32, 29 and 28 deploring the fact that Mary Pickford wanted to destroy the negative copies of all of her early films.
The Fairness in Copyright Coalition asserts that public domain distiibuton are waiting to release many silent movies
and will not be able to do so for another 20 years if term is extended Comment 1 1, at 4-5.
^ Copyright Law Revision, part 2 at 316-317.
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Represenutives of songwriters stated that there is no savings for consumers where their works
pass into the public domain because there is no reduction in price and that, therefore, only the creator
loses. ' An independent distributor of motion pictures and television shows urged that it was not fair
to penalize the creator and that "There is an effort by 'public domainers' that pirate motion picmres
world-wide to obstruct the efforts to restore copyrights so they [can] use freely motion pictures without
licenses from the owners." '*
b. Evaluation. In evaluating any change to the copyright law, Congress must go
back to the constitutional mandate. With respect to extending the copyright term two provisions must be
considered: that copyright laws exist for the benefit of the public, and that copyright shall be for "limited
times."
(i) Public benefit. In the United States, economic and social effects of
protection must be considered. The key is to promote creativity on the one hand, and to ensure maximum
public access to this creativity on the other. One question raised is whether shorter terms inhibit
creativity and the production of new works. The Copyright Office does not believe a case has been made
that extension of the copyright term would diminish the creation of new works. To make such a case, we
suggest comparing the experiences in countries with a shorter term to those with a longer term.
Strong copyright laws foster rather than discourage the creation and broad dissemination of
culniral works. Panicularly since copyright, unlike patent, only protects expression not ideas or facts,
and a new author is free to use his or her own expression to create a different work out of the same
public domain idea or facts. It is only when the new author appropriates the expression of the earlier
author that considerations of copyright arise. Moreover, it has not been shown that the creation of
•.. . '' See, e.g.. Comment 6 at p. 3. (George David Weiss, President, The Songwriters Guild of America).
'* Sm Comment 23 (Wade Williams Productions).
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derivative works decreased following term extension in 1976. In looking at the current entertainment
industry, one sees a large number of remakes regardless of whether the work is based on a public domain
work such as Linle Women or a licensed version of a more recent title such as the Broadway show, "How
to Succeed in Business Without Really Trying." "
Mainuining and enhancing the health of our copyright industries should be viewed as being in
the public interest. Historically, Congress on numerous occasions has rejected the notion that thrusting
works into the public domain premanirely is a positive thing, and the law has been amended many times
to reduce this possibility. The 1992 amendment providing for automatic vesting of copyright renewal is
a recent example. The Copyright Office believes the same principle applies to this term extension.
There are some costs to term extension, however, and they must be weighed against the benefits.
While it does appear likely that as a result of term extension, sonoe items may become more expensive,
the impact on individual consumers should be minimal. ''* When it comes to choosing whether to protect
authors or slightly decrease costs associated with making materials available, the balance should be in
favor of authors. "
(ii) Tjmitfd times. Unlike other countries which have no similar
requirement, the United States Constitution provides that copyright shall be for "limited times."
Determining what the appropriate term of copyright should be and what "limited times" means is
extremely difficult There is no guidance — only the history of how Congress interpreted that mandate.
Nor is the criteria to be used in deciding the term clear.
^' Interestingly enough although opponents assert that 'It's a Wonderful Life' became popular because it went
into the public donuun. 'Miracle on 34th Street' is equally popular and it is aoi in the public domain.
' Companies wbich are dedicated to exploiting public domain material are affected by term extension. No
matter what the term is, however, some works will enter the public domain each year.
^ S^ Si. Barbara A. Ringer, The Demonologv of Copyright Second of the R.R. Bowker Memorial
Lecnires New Series (New York 1974).
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The history of the United States and other copyright laws show that generally the term of
protection has steadily increased. A fundamental assumption seems to be that the author and at least his
immediate family should have the ability to earn some return on his work. Thus, even if the author ■
himself receives little remuneration during his lifetime, his spouse and children may receive some benefit
later if the work has a delayed success, which often is the case with serious music. Whatever the term,
one must also consider that the author frequently assigns his right to a publisher, film producer or other
disseminator of the work. In such cases, the copyright in the work represents a protection for the
investment that is undertaken in the publication or production of the work. Here the term granted must
be sufficient to allow the investor time not only to recover but also to earn a reasonable renim on his
investment. This is very difficult to estimate; different types of works and individual works within
different genres may have varying levels of longevity and may reach a poiitt of profitability at different
times. Another part of the equation is that there is a risk involved in publishing or producing work;
successful ventures subsidize marginal works. Unfortunately, there are few relevant statistics to show on
the average what a minimum term would be to make sure that a publisher or producer received a
reasonable term on his or her investment Although protection of the investmem may seem far removed
from protecting the author, in most cases authors' rewards are tied to the interests of those who exploit
their works."
In earlier debates of the 1909 Aa aiKl 1976 Act, Congress appeared to conclude that the copyright
should benefit at least two generations. The legislative history refers to an author's family without
specifically stating what constitutes a family. Samuel Clemens, an ardem proponent of a longer term,
stated that he did not care about his grandchildren since they could take care of themselves, but that the
'' S^ generally Ricketson, supra note at 320-1 .
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term should take care of his daughters. " On the other hand, the Berne Convention seems to have
accepted the premise that a work should extend to the author and two generations, thus, to the
grandchildren. The EU Directive on Term also mentions the author and two generations of heirs.
In 1978 the United States adopted a term of the life of the author plus 50 years. This eliminated
the possibility that an author might outlive his work. However, for the pre- 1978 copyrights, it added an
extra 19 years; thus, making 75 years the longest possible term. Also, for these works, to obtain the full
term, a renewal claim had to be made in the 28th year of the first term.
In looking at the criteria used in the past, since some authors of pre- 1978 copyrights or their
widows or widowers are outliving the cunent term, the 20 year extension would seem justified. With
respect to works created on or after January 1, 1978, a longer term may be necessary to safieguard even
one succeeding generatioa
However, life plus 70 is an extremely long period of time, as is a term of 95 years from
publication or 120 years from creatioa To reflect the balance intended in the Constimtion, Congress
must make sure that works that are not being made available to the American public are still accessible.
This is especially critical to smdents, scholars and researchers. Thus, if the term is lengthened, the
concerns expressed from library associations in their July 11, 1995 letter to Mr. Moorhead must be
addressed. '° One way to address some of these concerns is to create a limited exemption during the
extra 20 years for nonprofit educational instimtions and libraries who provide materials that are directly
related to nonprofit instructional activities.
"' S« note supra al Proposal to Amend and Consolidate the Acts Respecting Copyright. 1906: Hearings on
S. 6330 and H.R. 19853 Before the Joint Committees on Patents, 59th Cong., 1st Sess. 1 16 (1906) (statement of
Samual L. Clemens, author).
" See Letter from Robert Oakley, Washington Affairs Representative, American Association of Law Libraries;
Carol Henderson, Executive Director, Washington Office, American Library Associations; David Bender, Executive
Director, Special Library Association; and Carla Funil, Executive Director, Medical Library Association; to the
Honorable Carlos Moorhead, Chaiman, Intellecnial Property Subcommine. House Judiciary Comminee (July 1 1 ,
1995).
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Few would argue that a perpetual copyright term under federal law would be constitutional.
Despite a history of over two hundred years of copyright jurisprudence, judicial authority on the meaning
of the limited times" provision is scant. " In 1976 Congress believed that life plus 50 years did not
violate the Constitutioa Consequently, the Copyright Office believes that H.R. 989 which proposes
adding an additional twenty years is within reasonable bounds. "
2. Increase in the CoromTriaf l.jfe of Copyrighted Property.
a. Arguments. Opponents assert that most works already enjoy a term much longer
than their commercial value and that adding an additional 20 year term will simply make it more difficult
to create new works based on protected materials. " They argue that copyright is designed to protect
living authors and to ensure new works are created. Users of motion pictures strongly urge that currem
copyright owners do nothing in return for this extra copyright protection, that they feel no obligation to
preserve the work, make it available to the public, or even to grant permission for archival showings, and
" Perhaps the best judicial authority on the 'limited times' provision. United Christian Scientists v. First
Church of Christ. 829 F.2d 1 152 (DC. Cir. 1987), is subjea to a number of different interpretations. In that case.
Congress had enacted a private bill restoring and extending copyright in the writings of Mary Baker Eddy, founder
of the Christian Science Church. Copyright in those writings was vested in a particular faaion of that church. The
new copyrights established a duration of approumately 150 yean. In spite of the extraordinary duration, the D.C.
Circuit Coun of Appeals did not invalidate the law on the basis of the 'limited timet' provision of the Copyright
Clause, although the dictum did criticize the length of the term. Instead, the Court declared the stanite
unconstimtional on the basis of principles of separation of church and state in the establishment clause of the First
Amendment.
" Another constitutional objection which may be raised is the failure of the public to secure a 'benefit' for
the extended copyright in works already in existence. This argumem essentially seeks to reduce issue* of
constimtionality to an inquiry over identification of specific public benefits for each individual copyrighted work.
The copyright clause has never been interpreted in such a fashion. In appears reasonable to conclude that a longer
revenue stream for copyrighted material is to the public good because funds become available for the creation of
new works. Some may disagree with the length of the copyright term chosen by Congress, but the Constimtion gives
Congress the right to decide this issue. When the 1976 Copyright Act was enacted. Congress specifically embraced
longer terms for works already in existence. This decision was never challenged as unconstimtional. For these
reasons, the Copyright Office believes consideration of term extension is well within die Constinitional powers of
Congress.
" Comment 19, at 4-6 (law professon); Comment 97, at 9-1 1 (CFPPA).
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that, therefore, there can be no public benefit without public access. " Proponents assen that
technological developments since 1976 have greatly increased the life of copyright property. They also
note that some works may, through new uses, become hits late in life. "
b. Evaluation. There is a great deal of anecdotal evidence on both sides. Obviously
some works have a much longer commercial life than others. Some works have a very short commercial
life, e.g., novelty items; others, such as computer programs, will have a relatively short life, while othen,
such as music, may have a very long commercial life. Moreover, technological developments clearly have
extended the commercial life of copyrighted works. Examples include videocassettes, which have given
new life to movies and television series, expanded cable television and satellite delivery, which promise
up to 500 channels thereby creating a demand for content, the advent of multimedia, which also is
creating a demand for content, and the network phenomenon, i.e., the global information highway.
The question is who should benefit from these increased commercial uses? Much creative effort
and significant capital investment went into the creation of copyrighted works which now have an
extended commercial life. It seems only fair that the authora and owners of these works should be the
beneficiaries as long as the term of protection does not violate the limited times provision of the
Constimtion. Increased income to publishers helps to subsidize the creation of new works, which is of
bene^t to the public. Thus, as long as copyright owners take the increased income and use it for the
public benefit, such as in the creation of new works, the constimtional goals are met
The faa that many works have an economic life that is relatively short is not an argument in
favor of a shorter tens. For such works a lengthy term of exploitation is immaterial. One of the
commentators suggested there should be a different term for categories that do not require such lengthy
" Comment 97, at 10 (CFPPA).
" S«e Comment 6, at 2 (SGA).
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protection. '* In fact the Berne Convention does allow a shoner tenn for photographs, works of applied
an, and cinematographic works. However, the United States, unlike some other countries, has never
differentiated copyright term on the basis of the category of the work, and we are not advocating such
an approach.
Another concern that must be addressed and that is reflected in the letter of the library
associations to Chairman Moorhead, is that where a work no longer is commercially exploitable, we must
ensure that it is still accessible. '^ This is an issue today with our current terms of protection. It is an
issue that would be made worse by H.R.989. Creative ways must be found to deal with this issue.
Librarians, educators and historians have traditionally opposed any extension of the copyright
term; however, library associations are not opposing this bill per se. No one is trying to deny economic
reward to creators of works that are capable of and are being commercially exploited. Rather they are
asking that their legitimate concerns be addressed.
Ideas and facts are in the public domain, and fair use and certain exceptions allow students,
patrons of libraries, scholars and researchers to make certain uses of copyrighted works. But as we move
to a digital environment, it is unclear how all this will play out. Key issues today include preservation of
materials in both facsimile and digital formats and guaranteeing access, including electronic access, to
copyrighted works.
There is a critical need to improve American education. Libraries, tike the Library of Congress
through its National Digital Library efforts, are anempting to bring unique copyrighted materials to the
American educational community. The Library of Congress has been diligent in seeking copyright
permissions for its Digital Library projects. However, it is exceedingly difficult to determine the
" Ricketson supra note 60. at 770-1.
" See supra note 80.
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193
copyright status of cenain types of works, e.g., photographs, prints and labels. Moreover, finding the
current owner can be almost impossible. Where the copyright registration records show that the author
is the owner finding a current address or the appropriate heir is extremely difficult. Where the original
owner was a corporation, the task is somewhat easier but here too there are many assignments and
occasionally bankruptcies with no clear title to works.
Limited uses of older copyrighted material for instructional activities must be allowed. " With
respect to libraries, guidelines could be worked out under section 108 as to what materials might be used
without permission or paymem as long as the use was related to instiuctioiul activities in nonprofit
educational institutions.
There is a separate issue relating to facilitating licensing of copyrighted materials, especially
where after a reasonable search the copyright owner caimot be located. A mechanism must be devised
to resolve this problent In Canada, the Copyright Board, a govenunent organization, is given the right
to grant a noi^-exclusive license for the use of previously published materials where the copyright owner
cannot be fouixL A license is granted only if every reasonable effort has been made to find the copyright
owner. Such a license, which will set the terms and conditions, such as the amount of royalties to be paid
" There is also some confusion about what can be used. See, e.g.. Comment 39 where commentator asseru
copyright registration kept him from using a 70'$ PBS series to learn sign language.
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July 11. 1995 32
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and the license period, only covers use in Canada. " Apparently, Japan and Hong Kong have similar
provisions. ^
Solutions to these problems might be forthcoming if the Subcommittee directed the panics to
work these issues out. If the Subcommittee wishes, the Office would be most willing to try to facilitate
this process. We believe we have considerable expertise in this area, and we would like to see these issues
resolved.
3. Fair Economic Benefit.
a. Arguments. Opponents argue that the existing law already gives authors a
sufficiently long term, and that even if there has been some increase in life expectancy since 1976, it
would not warrant a 20 year extension of the basic term. They argue that the existing term is already
long enough to take care of most authors and their heirs and that it should not be extended to cover a
second, succeeding generation. They also assert that the longer term will not really go to authors, but
" Section 70.7 of the Canadian copyright law provides as follows:
OWNER WHO CANNOT BE LOCATED
(1) Where, on application to the Board by a person who wishes to obtain a license to use a published works
in which copyiight subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner
of the copyright and that the owner cannot be located, the Board may issue to the applicant a license to do an act
mentioned in section 3.
(2) A license issued under subsection (1) is non-exclusive and is subject to such terms and conditions as
the Board may establish.
(3) The owner of a copyright may, not later than five years after the expiration of a license issued pursuant
to subsection (1) in respect of the copyright, collect the royalties fixed in die license or, in default of their payment,
commence an action to recover them in a court of competent jurisdictioit
^ §^ e.g., art. 67 of the Japanese Copyright Code.
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195
will benefit large corporations. " In panicular they assert that there is no need to increase the terms
for works for hire which already enjoy a longer term than that proposed by the EU. "
Proponents argue that the existing term does not cover life expectancies and two generations "
and that a longer term is needed to give authors and copyright owners a fair economic benefit. " They
note cases where the copyright expires while the author or his or her immediate heirs are still alive. They
assert that the existing term is unfair since it does not account for the untimely deaths of some authors
or for works by mamre authors. '' They also urge that the term should be longer to allow a reasonable
return on economic investments. '*
Furthermore, they assert that it takes a long time to recover astronomical production costs for
books, films, plays, and computer programs and that they never recover costs on most of the works
produced in these categories. " One author asserted that even in writing for a film fo: which he held
no copyright, he could "couiu on the duration of the fllm owner's copyright which ensures that I am
compensated for future exploitation of my work on television, videocassettes, and possible merchandising
or publication, etc...." "
" Comment 97 at S-8, 24 (The Committee for Film Preservation and Public Access). They argue that
Corporaiions are not natural authors; therefoie, life expectancy is irrelevant for works for hire. Changes in
generational age are meaningless in the context of film investments, which are either recovered quickly or not at
all. Id.
" See e.g.. Comment 18 ai I (Reel Movie International).
" Comment 98 at 10 (CCCO Supplementary).
" Ss generallv Comment 2 (MPAA); Comment 1 ^fMPA; Comment 3 (CCCO); Comment 4 (ICMP).
" Comment I at 4, 5 (NMPA).
•* Comment 4 at 3 OCMP).
" S« Comment 2 at 2.
" Statement of Michael Weller, Member of the Writers Guild of America, Los Angeles Hearing (June I,
1995).
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b. Evaluation. Although it is clear that the existing term is long enough to take care
of works that achieve commercial success early, most works do not fall into that category. As discussed
earlier, a number of works, especially serious ones, may never recover what it costs to produce them.
A number of authors may spend a great deal of their life working on books that never gamer much
income. In order for authors to keep writing, they must be supported by publishers. In order for
publishers to keep publishing these less popular authors, there must be sufficient reason to believe that
they can recover their investments on other works.
For these reasons, H.R. 989 would provide additional money that could be used to invest in works
by untried authors or serious works. Dissemination of such material does benefit the public.
4. Harmonization.
Harmonization of national copyright laws provides "certainty and simplicity" in imemational
business dealings. It also brings about a fairer and more equitable result. In 1976 the U.S. adoption of
a term of life plus SO was a move toward international harmonization. At that point, life plus SO years
was the standard in the Berne Convention, and the vast majority of countries had already adopted this
term. Although there were countries that had longer terms, there was no significant movement
internationally toward a longer term. Now there is such a movement, albeit limited at this time to Europe.
a. Aryuments. Opponeius argue that the Berne Conveiuion and the GATT TRIPs
agreement only require a term of life plus 50, and that this standard will not be raised without the United
States. " Therefore, the United States should not increase its teniL Proponents of copyright term
extension argue that the EU Directive on Term once again creates a significant difference in the term of
protection in a number of important, industrialized countries. '°° They argue that the term should be
" Comment 19, at 13 (Law Professors).
'*■ Sec e.g.. Comment 99. at 7, 8 (NMPA).
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increased to match that mandated by the Directive, and they assert that this indeed will become the new
standard.
b. Evaluation of arguments. The Copyright Office believes harmonization of the
world's copyright laws is imperative if there is to be an orderly exploitation of copyrighted works. In the
past, copyright owners refrained from entering certain markets where their works were not protected. In
the age of the information society, markets are global and harmonization of national copyright laws is,
therefore, crucial.
There has been a distinctive trend towards harmonization over the last two decades; however, the
development of the global information infrastructure makes it possible to transmit copyrighted works
directly to individuals throughout the world and has increased pressure for more rapid harmonizatioa
This is reflected in the exercise to create a Protocol to the Berne Conventioa That exercise has been
characterized as a norm setting exercise; the stated goals are to address important areas where application
of the 1971 Paris Act is either imdear or the ituerpretation of existing obligations are the subject of
dispute.
As discussed earlier, H.R. 989 does not completely harmonize our law with the Directive on
Term. In some cases, the U.S. term would be longer, in others the EU terms would be. These areas
include, for example, the provisions for pre- 1978 copyrights and terms for anonymous and pseudonymous
works and the EU provisions for cinematographic works as well as the limited cases in the EU where a
corporate entity is a rightsholder. Moreover, in some areas, for example, sound recordings, our present
term is already longer than that called for in the Directive.
It does appear that at some point in the future the standard will be life plus 70. The question is
at what point does the United States move to this term? If harmonization is a goal, adoption of the rule
of the shorter term should be considered. This could put pressure on other couturies to raise their term
of protection for sound recordings thereby leading to harmonization of the term for this type of work.
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B. OTHER CONSroERATIONS
1. Rule of the shorter term.
Finally, copyright term extension without adoption of the rule of the shorter term could lead to
trade imbalances against the United States in every area of the world except Europe. This is because
foreign works would be protected for the life of author plus 70 years, while U.S. works, outside of
Europe, would be protected only for the life of the author plus SO years. Therefore, non-European
foreign authors would receive copyright royalties for twenty additional years for use of their works in
the United Sutes, while no offsetting royalties would be generated for U.S. works used in those
countries.
The Office is not taking a position on whether the United States should go to the rule of the
shorter term. Adopting this rule may have benefits vis-a-vis harmonization and economic impact
Others, however, have recommended that the United States should adopt this rule, and that, of course,
will be your decision. '°' The Coalition of Creators and Owners provided us with information in 1993
that indicated that 16 countries applied the rule of the shorter term and that at least two more would have
to apply it in the future. ""
2. TraiMfrrgq.
The fact that copyright extension vests in transferees has been cited by opponents of term
extension as another objection. Some argue that giving the extra term to assignees may be
unconstitutional.
'" See D. Nirnmer, Nation. Ehiration. Violation. Hannoni^^ti<^^- An Intemational Coovright Proposal for the
United States. 55 Law <Sc Comtemp. Probs. 211-4 (1992) (submitted as Coimnent 7).
"" See Comment 98, at 7, 8 (Joint Supplemental Comments of the Coalition of Creators and Copyright
Owners).
dirr\(tunaon.ioc
July 11, 1995 37
199
However, in 19''6 the copyright term for pre- 1978 copyrights was extended by 19 years. There
was considerable debate as to who should be the beneficiary of those extra 19 years. Congress chose not
to vest the rights in those extra years in the authors of those works. Instead, it created a mechanism by
which authors could reclaim those rights from transferees — a right of termination. With respect to these
works, notifications of termination have been received and recorded with the Copyright Office from 1978
to present. '"'
On balance, it seems that authors should be the beneficiaries of the longer term. '" Clearly
the structure of the present law with the two termiiution rights covers most works. In these cases authors
do have the opportunity to benefit from the additional years. In the case of pre- 1978 copyrights for
which the right of termination has not yet vested, the right of termination would cover 39 years rather
than 19 years. For new law works and for transfers that were made on or after January 1 , 1978 the law
provides a right to terminate such transfers generally 35 years from the date of the transfer. Thus, for
these works, the right of termination is available and authors and their heirs will have the right to benefit
from the longer term.
There is one category of works, however, where the author would not have the possibility of
striking a new deal for the extra 20 years — works where the period to terminate has already passed.
Congress may wish to consider the possibility of creating a new right of termination for these works. The
Copyright Office has been recording documents concerning the termination of transfers siiKC 1978. Our
experience is that the number of transfers for copyrighted works that are terminated is proportionately
small when compared to the universe of copyrighted works that are subject to termination in any given
"" Only 566 notices of termination were recorded in the Copyright Office between November, 1993 and
May S, 199S. Of these, SSI were musical works.
'** The Nashville Songwriters Association International (NSAI) Board of Directors indicated that while it
wholeheanedly supported the possibility of extending the copyright term, 'it would oppose legislation directed
toward this end should that legislation contain any extension of The Right of Termination.' Comment 24.
dirr\duntionloc
July II. 1995 38
200
year. By far the vast majority of tenninations involve musical works that continue to be commercially
valuable.
In considering the right of termination. Congress should examine the derivative work exception,
especially as it relates to musical works, and the effect of that exception on authors and especially
composers. The problem of small scale derivative works such afi musical arrangements versus large scale
derivative works like motion pictures is fully set out in Mills Music. Inc. v. Snvder. 469 U.S. 153 (1985).
Thus, there is a question as to who should benefit from the extension of the term. But this is a
different question from whether the term should be extended.
rv. CONCLUSION
The rapidly expanding international market for copyrighted materials especially in light of the
global information superhighway supports harmoniziiig national copyright laws and adjusting, where
necessary, international copyright treaties. Indeed such haimonization is crucial. Harmonization as
evidenced by the European Directive has many advantages including simplifying copyright transactions.
Achieving harmonization will be difficult, but, as a major producer and exporter of copyrighted works,
the United States should lead the effort
Except for sound recordings, anonymous, pseudonomous, and collective works, the European
Union has generally adopted a life plus 70 standard. Increasingly as countries revise their laws, the
copyright term will be life plus 70; however, the United States does not have to move to life plus 70 at
this time. It is not yet the iiuemational norm and clearly neidier the Berne Convention nor the GATT
TRIPS agreement require more than life plus SO.
That countries with copyright terms longer than life plus SO adopt the rule of the shorter term,
which is clearly provided for in both the Berne Convention and die Universal Copyright Convention,
dirrWunaoii.loc
July II. IMS 39
201
should not be surprising. What we now have is at least 15 European countries, i.e., the European
Community, imposing that rule as of July 1, 1995, although some member sutes may take a while to
implement the requirements of the Directive on Term. Thus, if the United States does not go to the
longer term, copyright owners will be denied money that they otherwise would be entitled to receive.
One must also factor in what will be the cost of extending the term in the United States since this
is the largest market for U.S. works. Unfortunately, there are no meaningful statistics to assist in
determining the cost of extending the term and the benefits to be gained. Thus, on a pure economics
analysis, at this point it would be difficult to support H.R.989. Congress could, to lessen the economic
impact, adopt the rule of the shorter term, i.e., make the availability of extended term depend on
reciprocity. This would be most helpfiil in the case of sound recordings where the U.S. extended term
would be 45 years longer than the international norm.
On the issue of the constitutionality of the term of protection. Congress decided in 1976 that life
plus 50 years met the Constitutional requiremem of 'limited times." If life plus 50, which is a very long
time, is constimtional, life plus 70 would seem to be constitutional. The question that we don't face here
is what is the limit on "limited times?'
The major poiius that lead the Copyright Office to support H.R. 989 are 1) the need to
harmonize copyright terms throughout the world and the acceptance that life plus 70 will sometime in the
future become the ituemational norm and 2) as a leading creator and exporter of copyrighted works, the
United States should not wait imtil it is forced to increase the term, rather it should set an example for
other countries.
While the Copyright Office generally supports H.R. 989, we do oppose adding ten years to the
term of the unpublished works covered by 17 U.S.C. 303. We believe there is also a question as to who
the beneficiary of the extra 20 years should be especially in cases where there is no existing termination
right. We also condition our support on working out solutions for libraries and educational instiwtions
dl^^^dunaoaloc
July II. 1993 40
202
that will address questions of preservation and access and also clarify the appropriate nonprofit
educational uses that are beyond fair use. We have made several suggestions concerning how these issues
can be resolved including adopting a system similar to the Canadian one for authors who cannot be
located, developing guidelines under §108 for materials that can be used without payment for nonprofit
educational purposes or perhaps excluding such uses from the extended term. Solutions to these problems
would be more forthcoming if the Subcommittee directed the panies to work this out, and the Office
would be willing to assist in facilitating agreement on possible solutions to the problems of preservation
and access of older copyrighted works.
dirrVduranoitloc
July 11, 1995 41
203
AKGUMINTS nW AIGUMZNTS MiASNST
TKADI BALANCX 1. A» » mi exfotm of iwrllTdiil proywty. at UniMd S<— I. iHua vnb ropaa to mac imlaluica in mm com|iici
wcuM iofion Us tntt liilinri br ooRrriflC an tanHBa itia (kyaitf by proixjnMM o( HX 9S9 wiuic us u S
cnmatty caioTi a tBif« end* nrih*].»r» ji jueijecnul
pnf«ty, aott of dii ■■***'«"^ invotvei coouaiponry
vofti, SKfe M pofBlir auk, louotf r«co<ilui(i. axxioa
Uodca SaM u a mxtd IcaMr la aJiryiilM imiiliin B)r ahcdy (br ifet aki oruatemr. Tbay (iid ooi a>oiid«
iipfndiii(ourpniiaa»a«bea>,«aaBaiiitsattKcai^Bm or balaanaay of ikckcBn axcooaisio bt loponaa.
u> mcnaaa mar oaoood Wnt of pnaaaio& IiaMaA of OBfty Uo«iig Omu i> vould ba bcair dor lai
UniM Sam id aaa m aOamm id afwiraga ma laa of
ihi «aM ID nam ■ ifta Gurraa ioafaaiiaal nadaitf.
HAMMMZATION 3. EaraaaOy ialifliorikDNnaaiGa bvBomMioaabaEaa- 3. HitmamBtlBmhimanmtMiMimffnfnmJiaam
ml craciai: ikit ia OD luii|« a ^Haiioa of it b« arka& coapraaimi oitai | ■ ■ pnadftaa. Puntav. te
Punta*. »T ■-■— i-'i aritt ita eU. «■ UniM SMm amM iob cmmoa prapoai* ia HX 9*9 voiM ooi miia U S.
law niMfaiim wiik Ganpaa lain. Tba U S already
excaade m Eufopaaa ladarta Ibrarovta (brbut. Eaaa-
oiH of HX 9M voiM oaly widaa im p^
Tte CMBaa !■■ of liib pm 50 yean providca autaoci
«tt afflciaB iae^riaa B praduea.
LO^N3■ UR/HEnS 5. SiacaihtfoaliaiDpnaataoiaBmaiofaaaatBf'ihaiia. 5. Tha bain of la miai aay aoi can eaouft lo aaure ibai
copytifti dunttoa akoaM ba eaaadad id acaonodaH iba iba aitia'i *ott la Uft liiva. Tbc |o*l ibould ooi be u>
iDcnaaa ia lift aayaOHsy aad m mad m«4 pospoaas mratd aa auKter'i gnnrtrtatiiTaD for tbt auibDr'i vorti;
childbaanaf uai IMar ia lift. mtaar, tba gnadmUraa iboutd ba (onad lo vnic ibcu
owaanrta.
SERIOUS WOXKS 6. SiiiEaibapofalaa(yofnniaa«atia0«aaialaa(cy<iaa,aa* t. Govanoaa aibadiatioa of ibaaa spadal vorti lix iba
^rl^■laapllllir^tn■a^d^re^«^o^of■^»»^l^tllall^lai^ila, potfic baaatt Bi(ti ba a baaar iJiaraaBvc lAu lana
aaauttormay aothaaMalofaapibaaGoaDnicfawardafcrbia f nmina
woit te Baav yaan a>K cnaooB, Tbaaa araita, itaa, iboaM
(ciiba baafll of a loa|B danboK,
LNEQUmS 7. Emamaafdanbnvillailrnmibiiaaqaibaacaaaadbytba 7. Tba lam it afeaady kia| aasufh u cover aicta oopuiaa.
taaattf daam of loat iiabon (Joba Uaaoa), iha litiba of
oaona bia ad pmbflc auibon (Laooaid l>aniaiaia), tad iba
ilcaiba of lUbDn wboaa wnta do on rasan* any innaina
luol tfiar ibt tuiboc diaa.
204
ptRreTtTnr
'. LOOTED
*^3dT a>«iiaMe » cDe pubtac ttaa vorts ifl UK puMjc doinua.
^A>t^KM( gunaaeo of excteswy -a aaoufaaunag lad
Jianftuooo. a pttbtaslMr Witt oAea dectioe u} JTrea la cat puMi-
aDoa oC a puMc dooaia work for feir ^f a se^emy juma-
;s&ed LI pnn—r nan. The resuB a a ^eanb ^r quiity capia
of BBay «octs after tftor fBfa of proceaioa bu uptnd.
1 >3 iOon a ;enn tanm c&e autaor «>itbou gv-Mif any uMtta-
uai acaedt u U!k pufibc The puOtK &cqueaily payi ctic afflt
for »orts Ji ::x pbMic icaaia u i ic€t for »prnfaied
•ore and :ae ooiy rout j a ■.■■<»■—'■ »«* vnia^ » ceruia
UBn ac OK autaor's expcoM.
Enenaoo of ;&» wm ^ ZO ;
'ruKvort. ^~«v«d a Lsm ^ 3ioni r^tB of :&b
WOK say ankTruai propcry saouid te veacri m per\
Ajiy foenaoo (hm praMa-<^y dunooa vouM ba a ibd-
ji ceepog v«ft ;Am vv« of aonl nfttt.
P'jWk Jomain wofta are mporum c sx rresenauon of
:«ea(ja& ;eflQu> outure ExiensKxi *o^Jd iurle poteniui
^^ofTlpOe^ *oo fau uj oeum pemuiSion u? j&c :op*r joi-
ed suunau. Oocumaxina and sducaoonai r'uma caxuioi
3e sade *iiboui acceaiMc puMic Jemam luicnais.
Thenfore. saoy ^mponaisvoftscAaiEu^eeducaucnaiaad
;u&MXU JDporuace ^^ oUicr aoc ^e :nade x *m be
oaccenbk u c&e pubdc EnnuOTo vUI ream .a aimoa
^mpioc jBCcembdicy of a ^arfc pcxtwa of ovr iKXioa
p^c&n fiemaie.
TV oiomaie coaof 'xm exuasioa a patd by Jk coosuaser
ji 'Jm fTCMer :ocu of Jk ^lU&Bd pnjdiKU. ^ ^opynftt
cxtfaatoo *iil .-csuji <n ;Qon iKzosuif cooa for amuic aad
51m. EjaeasoG poopooei <Jic uts u % tacfl *T}rts w^u go
JBO UK puotic oooHxa. *tiK& puu ofTibc dauu *iiKti me
«ofti ^tcooM caapcr to produce aad Suy
t vioUiei ite L'tBted States coosuuDoael
I. vtMca ipeaflcaiiy pre>^dei for a dflued mn of
pnxecaoa. The purpov of ccpyn^ it aoc nmpty u
provide lacooe (br wi&on aod creaion; nuser copynffit
ibmM Mrvt ifte puAtac by acourifiai oe« cmuooa tad
TTCHNOtOGY
iift 11. Tte air« ■ atatfy taag caoufk ID I
> tadtadMf oo^Bf^ IL CofpocMi imHv bem qdi 4oqb tayttnf id tneni as
la tt croboa ori eacaaari ar^ Mevooooa pvan aad amc aidioi do
oat pey lo piWHi^ kMocK fiboK. y«i tbay uuMiut t&e ooty
ia« or aMBoyai. EaaaAag tanr axnopoty vshoia a cor
xipoaaiac n^HaaaB to fc><V (&■ ^xxaf* '•tiMe vui ooty
I of tfts pBfaOc record
mUCtXfXITT
■ oatyi audfUoflutvcoopaaa.
an It* puMic EoMBoa pan Oi ndi or iHc puMk ui
■). SimM QUBOBMEi. Kflcun. AOri aHJeoon
>d •■ I llMMt ■. wHM ■ fev uif*
iwB Ooaratt. Tbtra a oe public
CREATTVl
OEBIVATraN
14. Co^vTifti d la
fntaarrxj iM %•» aa
puMe beoBM < lUsvi ararr* uen
gtsKM paMc aaxB 10 iM ««t>. u< • lacraaa faiUie
ezpoaK* n Oo >«tt (tor. taoaf oitar iteafi, educnooal
u4 toaarca purpoaaa. Steaat offivnliMic; br :u] yean
voald mfla 3<Km cflbnt. imile puoaf vorti ji Ja
puMic teSBB vcttid eataaea creaBvvy ^ OKOiinfiag UK
205
Mr. GOODLATTE [presiding]. Thank you, Ms. Peters.
Ambassador Barshefsky.
STATEMENT OF AMBASSADOR CHARLENE BARSHEFSKY, DEP-
UTY U.S. TRADE REPRESENTATIVE, OFFICE OF THE U.S.
TRADE REPRESENTATIVE
Ms. Barshefsky. Thank you very much, Mr. Chairman and Mr.
Conyers. It's a pleasure to be here.
I ask that my full statement be accepted into the record.
Mr. GoODLATTE. And it will be.
Ms. BARSHEFSiC5f. Our copyright law provides strong protection to
the rights of American creators and artists. It also provides a flexi-
ble market-responsive means of transferring and exploiting these
rights. These two factors have enabled the U.S. copyright-based in-
dustries to become the clear leaders in the creation and supply of
informational materials and entertainment products around the
globe. Consumers all around the world appreciate the quality of our
films, music, books, and software. This enables our cop3nnight indus-
tries to generate very significant positive trade flows for the United
States.
Recognizing the importance of the U.S. copyright industries in
the U.S. economy and in our international trade, the Office of the
U.S. Trade Representative has given very high priority to raising
the level of protection afforded copyrighted works around the globe
and of securing market access for these works. We will continue to
pursue these objectives using a wide range of mechanisms.
First, through bilateral agreements, particularly with countries
that we have identified under the special 301 process as failing to
provide adequate and effective protection of intellectual property
rights — this is the mechanism, for example, that we have utilized
most recently in connection with China.
Second, through monitoring and enforcement of the ground-
breaking Uruguay Round Agreement on trade-related aspects of in-
tellectual property rights, the TRIPS Agreement.
Third, through regional exchanges such as in APEC, the Asia Pa-
cific Economic Cooperation Forum, and in the Americas through
the free trade of the Americas process.
And, last, through negotiating in the World Intellectual Property
Organization, WIPO, the international rules needed to insure the
protection of copyrighted works that will be transmitted over the
global information infrastructure.
Mr. Lehman will review for the subcommittee the full range of
issues that the administration has considered in assessing H.R.
989. In light of my agency's missions and responsibilities, I would
like to focus on the international trade implications of the proposed
legislation.
Based on recent changes to the laws of the European Union
member states, the passage of H.R. 989 would have a positive ef-
fect on our balance of trade. The member states of the European
Union are in the process of implementing the 1993 European Coun-
cil directive to harmonize their copyright terms to 70 years. The di-
rective requires member states to deny the increase in protection,
to deny the additional 20-year protection, to foreign nationals of
any country that does not also provide long terms to nationals from
206
the E.U. member states. The directive takes advantage of a rare
reciprocity-based provision in the Berne Convention called the rule
of the shorter term, which permits reciprocity-based extensions to
the life-plus-50-year term required by the convention.
In light of the differences in the terms of protection for certain
works and rights in the U.S. and E.U. systems, some U.S.
rightholders will be denied the extended term in the European
Union if the U.S. term of protection is not also increased accord-
ingly. I've detailed in my written testimony how U.S. rightholders
would be affected in E.U. member States if H.R. 989 is enacted.
In sum, the increase in the term of protection called for by the
legislation will permit the creators of works that are not made in
a work-for-hire context, such as independent writers, composers,
playwrights, architects, painters, and sculptors, to enjoy a term of
protection that is life-plus-70 years rather than life-plus-50 years.
Additionally, the owners of certain works-for-hire, such as motion
pictures, will enjoy the right to exploit the films in the EU member
states for up to 20 years longer than the 75 years they now have.
The countries of the European Union are a large and very afflu-
ent market for U.S. copyrighted works. According to a number of
our copyright industries, European accounts for more than half of
their international revenues, and the reach of European law will
extend to the E.U.'s neighbors to the east and south as they at-
tempt to harmonize their legislation with E.U. standards to forge
closer associations with the European Union. Given our large sur-
plus in trade with Europe in copyrighted works, I'm confident the
term extension in the United States will generate more revenues
for the United States than it will cost us in outflows.
Mr. Chairman, Mr. Conyers, one of the main trade policy objec-
tives of USTR is to promote the establishment of legal and enforce-
ment structures overseas that allow our intellectual property rights
industries to exercise their rights in the intellectual property that
they create. In that role, we're, of course, much more accustomed
to commenting on changes in foreign laws than we are in comment-
ing on changes on U.S. domestic law. Nonetheless, there is no
doubt that H.R. 989 has international, as well as domestic, implica-
tions. Its passage would have a positive effect on our trade balance,
and USTR strongly supports its passage.
I'd be happy to answer any questions the committee has on the
international implications of the legislation. Thank you.
[The prepared statement of Ms. Barshefsky follows:]
207
Prepared Statement of Ambassador Charlene Barshefsky, Deputy U.S. Trade
Representative, Office of the U.S. Trade Representative
I am pleased to have the opportunity to convey to the
Subcommittee the views of the Office of the United States Trade
Representative concerning H.R. 989, the Copyright Term Extension
Act of 1995.
There can be no question of the importance of strong
copyright protection in promoting the creation and dissemination
of works of art, literature, music, film, photography, drama and
architecture. The laws of the United States afford strong
protection to the rights of its creators and artists; our laws
also provide for flexible, market-responsive means of
transferring and exploiting these rights.
This system of copyright protection has contributed
immeasurably to the richness of our culture. It has also
provided a firm basis for the development of a dynamic copyright
industry that has made the United States a world leader in
supplying informational materials and entertainment products
around the globe. Because our films, music, books, and software
are attractive to consumers around the globe, our copyright
industries consistently generate a trade surplus for the United
States .
We must also recognize the importance of copyright
industries to our economy. Our copyright -based industries employ
thousands of workers in the United States and are employing new
workers at almost three times the annual rat%Qf the economy as a
whole. These U.S. industries contribute over >^*billion in
foreign sales, more than any other U.S. industry except
agriculture and aircraft, and are growing at twice the annual
rate of the economy.
Recognizing the significance of the U.S. copyright
industries in our international trade, the Office of the U.S.
Trade Representative, in conjunction with other U.S. Government
agencies and the Commerce and State Departments, has given high
priority to raising the level of protection afforded to
copyrighted works around the globe, and to securing market access
for these works.
We negotiated the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (the TRIPs Agreement) which
established strong international disciplines in an area of great
importance to the U.S. economy and was one of the most
significant achievements of the Uruguay Round. At the same time,
we continue to make effective use of the Special 301 process and
other bilateral channels to advance our goals. This year, we
concluded a far-reaching agreement with China on the enforcement
208
of intellectual property rights, and on market access for those
who depend on the exploitation of those rights. Our copyright
industry arguably is the primary beneficiary of this combination
of enhanced protection and market access. Among other things,
the agreement required China to:
-- take immediate action against those well-known factories
producing huge quantities of pirated and counterfeited
products;
-- make structural changes to ensure effective enforcement
of intellectual property rights over the long term, with
coordination of enforcement efforts at the national,
regional and local levels;
-- prohibit the use of infringing products -- particularly
computer software -- in government ministries;
-- create a customs enforcement system modeled after the
U.S. system;
-- create a title verification system to help prevent the
unauthorized production, importation||iexportation and retail
sale of U.S. audio-visual works,
-- allow U.S. intellectual-property related corfipanies to
enter into joint ventures for the production, reproduction
and distribution of their products within China.
In some areas of the agreement, China has gotten off to a
good start, with establishment of enforcement x.task forces, raids
against computer software pirates, action against CD-ROM piracy,
and issuance of new regulations. At th^ same time, we recognize
that piracy remains a serious problem in China, and that we must
keep up the pressure on China to implement the agreement
effectively. USTR has established an Executive Secretariat, with
private sector participation, to collect and analyze information
on China's implementation of the agreement, and to coordinate
training programs. A high-level USTR team plans to visit China
for consultations under the agreement in late July.
In April 1995, to address the uncontrolled piracy of U.S.
sound recordings in Bulgaria, we reached a detailed agreement
with Bulgaria on the protection of U.S. copyrighted works. Under
that agreement, Bulgaria signed on to the Geneva phonograms
Convention, amended its laws to make copyright infringement a
criminal offense, and committed itself to put into place a
copyright verification system.
Also in April, to address the rampant piracy of U.S.
copyrighted works, particularly computer software, in Indonesia,
we secured a commitment from the Government of Indonesia to
undertake significant efforts to fight copyright piracy.
209
In the coming years, we will use existing multilateral
mechanisms, such as the TRIPS Agreement, and bilateral
mechanisms, such as the Special 301 of our Trade Act, to combat
the piracy of U.S. copyrighted works. We will also work on a
regional basis --in Asia and in the Americas --to seek better
IPR laws, and to ensure that these laws are enforced. Finally,
we will work with other agencies in the U.S. government to
negotiate with our trading partners the international rules that
will be needed to ensure the protection of copyrighted works that
will be transmitted over the Global Information Infrastructure.
It is against this backdrop that I will assess the impact of
HR 98 9.
It is clear that there are numerous factors and interests to
take into account in determining whether a copyright term
extension of 20 years is in the overall interests of our country.
Many of the domestic issues connected with this decision lie
outside the competence of the Office of the United States Trade
Representative. We are therefore reluctant to insert this Office
into a discussion of the full range of questions that the
Subcommittee has before it.
The focus of this statement, rather, will be on the
implications for our trade balance of an extension of the
copyright term. '-
It is impossible to talk about those effects without taking
note of the fact that less than two weeks ago, the European Union
implemented a decision, taken in 1993, to harmonize its copyright
term at life plus 70 years. This means that all members of the
European Union, with the exception of Germany (which already had
a term of protection of life plus 70 years) had to extend the
term of protection that they provide to their own copyright
holders, and to copyright holders from the other member states.
Unfortunately, the members of the European Union are under
no international obligation to extend this longer term of ■•
protection to U.S. right holders, or to right holders from any
other country that does not provide a reciprocal term of
protection to works of European authorship. The so-called "rule
of the shorter term" in Article 7(8) of the Berne Convention
permits member countries to limit the term granted foreign
origin-works to the term of protection provided in the country of
origin. In other words, Berne member countries are permitted to
provide terms in excess of that required by Berne -- generally
life plus fifty years -- to nationals of other Berne member
countries on the basis of reciprocity rather than national
treatment. The EU directive, taking advantage of this rare
reciprocal provision in Berne, requires member states to apply
the rule of the shorter term to non-EU nationals, except in
certain narrowly defined circumstances.
As a result, U.S. right holders will not be able to take
210
advantage of the longer term of protection in EU member states if
they are s\ibject to a shorter term in the United States. Because
some works protected under U.S. law already receive a longer term
of protection than in the EU system, the longer terms provided by
this legislation will have no effect on the term of protection
they receive in Europe. Other U.S. works, however, are currently
provided a shorter term of protection than in Europe, so will
receive a longer term if the U.S. term is extended.
In the U.S., works whose term is measured from the life of
the author -- where the work is created outside an employment
relationship and the author is known -- are currently granted a
term of protection of the life of the author plus fifty years.
If the U.S. term is modified to life of the author plus seventy
years, these authors or their assigns will enjoy a longer term of
protection in the EU member states. As a result, paintings,
books, sculptures, plays, architectural drawings and other such
works would enjoy twenty more years of protection in EU member
states if H.R. 989 is passed.
On the other hand, works made for hire are protected under
current U.S. law for a term of seventy-five years from their
publication or 100 years from their creation, whichever expires
first. Right holders in works subject to this rule, such as the
producers of sound recordings and films, currently enjoy a term
of protection twenty five years in excess of that pr'ovided by the
EU system, which is fifty years from first publication or
communication to the public. Because the maximum term of
protection for producers of sound recordings and films in the EU
system is fifty years, increasing the work for hire term in the
U.S. to ninety five years will have no effect ^on the term they
are granted in the EU system. As I will now explain, however,
there is a means through which U.S. filni producers would benefit
in Europe from term extension in the United States.
If H.R. 989 or similar legislation is adopted, right holders
in some U.S. works made for hire will be able to exploit these
works in EU member states for up to twenty years longer than they
can under the current system. The contracts under which these
works are created typically permit the person for whom the work
is created to exercise all economic rights granted to the actual
creator of the work throughout the world. In the case of films,
for example, directors are considered the authors under the EU
system and are given a term of protection of life plus seventy
years. These rights are in addition to, and more expansive than,
those rights granted directly to the producer that I just
mentioned. But pursuant to the contracts under which U.S. films
are made, all rights granted to the directors of the films by EU
member states are exploited by the producers of U.S. films.
The term of protection granted directors of U.S. films in
the EU system, however, is capped by the term granted the film in
the United States. Currently, then, the life plus seventy year
term they are granted in the EU system is capped by the seventy
211
five year term granted in the United States. if the U.S. work
for hire term is extended to ninety five years, the term of life
plus seventy years granted directors of U.S. films in the EU
system would be capped at ninety five years rather than seventy
five years. Directors of such films would therefore receive --
and the producers who hold their rights would therefore enjoy --
up to twenty years more protection in EU member states, depending
on the life span of the director.
Consequently, if the U.S. extends its copyright term in
accordance with this legislation, some U.S. right holders will be
able to collect revenues from the exploitation of their works in
Europe for up to an additional 20 years.
The countries of the European Union are a large and affluent
market for U.S. copyrighted works. The population of the member
states of the EU - - ever increasing in number -- is now nearly
370 million. Moreover, the reach of EU legislation will expand
even further in the coming years. Turkey, for example, has just
enacted legislation to raise its copyright term for newly-created
works to life plus seventy years. It is unlikely that Turkey
would have done so were it not for the need to meet the standards
of EU protection of intellectual property rights as part of the
obligations it took on in concluding a Customs Union agreement
with the EU. The countries of east-central Europe are also
moving in the direction of harmonizing their legislation with EU
standards as they move toward eventual membership in the
Community.
Given the preponderant balance in the U.S. favor in US-EU
trade in copyrighted works, an additional 20 years of copyright
protection on both sides of the Atlantic would add more to the
revenue flows headed from the EU to thej^U.S. than it would to the
monies we would be required to pay out to Europe. While the
Administration has not undertaken the complex process of
quantifying the precise extent of these benefits, the Motion
Picture Association estimates that term extension would result in
a modest increase of revenues from international sources of. less
than $1 million per year by 2000, and $3 million per year by
2010, rising more dramatically to $160-200 million by 2020. One
of our two major music collecting societies estimates additional
international revenues of $14 million per year if U.S. right
holders are in a position to take advantage of a further 20 years
protection in Europe.
In view of the international benefits to U.S. rights holders
as a result of copyright term extension as proposed by HR 98 9,
the Office of the United States Trade Representative supports the
proposed legislation.
212
Mr. GOODLATTE. Thank you, Ambassador.
Commissioner Lehman, welcome.
STATEMENT OF BRUCE A. LEHMAN, ASSISTANT SECRETARY
OF COMMERCE AND COMMISSIONER OF PATENTS AND
TRADEMARKS
Mr. Lehman. Thank you very much, Mr. Goodlatte.
In the interest of efficiency and since I know that everyone has
a lot of other things to do today — I will attempt to be extremely
brief, particularly in view of the fact that this is not really a com-
plicated subject. I would like to begin by apologizing for the Admin-
istration getting its testimony to the subcommittee so late. How-
ever, it seems as if we were all on the same wave length an3rway.
In fact, if Government works were cop3n'ighted, the administra-
tion's opening statement might be an infringement of the chair-
man's opening statement. [Laughter.]
So it's quite clear that he understands what the issues are, and
I think that the other members of the committee do too.
I think you will find unanimity among the three witnesses that
the principal reason for making this change is that it will enable
us to harmonize with the European Union, our largest single mar-
ket for copyrighted works outside the United States. In fact, in
some cases it might even be larger than the United States.
The Register of Copyrights, Ms. Peters, was correct when she
suggested that this legislation would have an immediate impact, a
very near- term impact, on works between 1920 and 1940. If we just
think a little bit about that period of time, that was a period in
which America's copyright industries really came into global domi-
nance. There is a great deal of material that will have great com-
mercial value on an international scale. I think it is fair to say
that, with the passage of this legislation, there will be considerable
revenue flowing into the United States because of the capacity to
continue to exploit these works.
Now that does have an impact on creativity in the United States
because much commercial creation — in fact, almost all commercial
creation — is funded by commercial enterprises. This day and age of
the information superhighway, and so on, it requires considerable
financial resources to get product out to the public, particularly on
the global scale. The extension of the copyright term will provide
commercial copyright-based industries with the capacity to do that.
In the course of considering this legislation within the adminis-
tration, we considered a number of very specific cases. We had
some experience with this because we restored cop3rright protection
to some works that had fallen into the public domain as a part of
a NAFTA implementing legislation. There is some evidence, that
the restoration of copyright protection under the NAFTA legislation
actually encouraged industry to make available to the public in
new editions, and much finer editions, works which otherwise
would have remained moldering in the library. So on balance, we
agree that there is a great deal of merit in this legislation.
I'd just like to say a word about the concern that works will not
go into the public domain. Obviously, that's always a concern, but
there's very little evidence that as a practical matter that will work
a hardship on Americans or American industry in any way. In fact,
213
there's very little evidence, for example, that the consumer pays a
great deal less for published works, which are in the public do-
main, versus published works which are copyrighted. If you go to
a bookstore, the prices tend to be comparable. So in our view, there
is relatively little down side to this legislation and it will definitely
provide additional revenue for one of America's fastest growing in-
dustries.
I'd just like to make one final point. It isn't in our written testi-
mony, but I would like to comment on the Register's concern about
section 303 and the term extension works that were unpublished
prior to 1978. I'd just like to remind the committee that prior to
1978 unpublished works enjoyed common law copyright protection
and virtually have perpetual protection and never would have gone
into the public domain. So the additional period does not strike me
personally as being an extensive additional period of time. There-
fore, I can say that the administration, without reservation, sup-
ports the Chairman's bill in its entirety.
[The prepared statement of Mr. Lehman follows:]
214
Prepared Statement of Bruce A. Lehman, Assistant Secretary of Commerce
AND Commissioner of Patents and Trademarks
Mr. Chairman and Members of the Subcommittee:
Thank you for this opportimity to appear before the Subcommittee to testify on
H.R. 989, the Copyright Term Extension Act of 1995. The bill would extend the term
of copyright protection in all copyrighted works that have not fallen into the public
domain by twenty years in an effort to conform U.S. copyright law with the
copyright laws of the European Union Member States.
Since the first Federal copyright law in 1790, the term of copyright protection has
steadily increased. In 1790, copyright protection was granted for an initial term of 14
years from the date of publication plus an additional 14-year renewal term if the
author was still living when the original 14-year term expired. In 1831, the length of
the original copyright term was increased to 28 years (with a 14-year renewal term).
Then, in 1909, the length of the renewal term was increased to 28 years (for a total
215
term of 56 years). Finally, effective in 1978, the length of the copyright term was
increased so that copyright protection would last either from the time the work was
created until fifty years after the author's death or, where the length of copyright
protection is not measured by the author's life under the 1976 Copyright Act, 75
years from first publication or 100 years from creation, whichever is shorter. Now,
with the introduction of H.R. 989 an increase in the term of copyright protection is
being considered by Congress once again.
Each time the term of protection was increased in the past, there appeared to be
ample justification for increasing the term. Although today the need to increase the
copyright term is not as pressing as it was in 1831, 1909 or 1978, there are several
reasons that a copyright term increase may be warranted. Most notably, the bill
would provide U.S. copyright owners benefits in other countries and in
international fora. Accordingly, we support the twenty-year extension of copyright
protection as proposed in H.R. 989.
The primary reason for changing the copyright term by twenty years would be to
bring U.S. law into conformity with that of the European Union. The European
Union (EU) passed a directive that, inter alia, requires each EU Member State to
provide copyright protection for a term of life-plus-seventy years by July 1, 1995. A
provision in the EU Directive explicitly requires each Member State to implement
"the rule of the shorter term," which prohibits any EU Member State from
protecting a work originating outside the EU for the entire life-plus-seventy years
term uiUess the country in which the work originated also provides for a term of
life-plus-seventy years. Thus, U.S. copyright owners will only be protected for a
term of life-plus-fifty years in the EU, while their EU coxmterparts will be protected
216
for a term of life-plus-seventy years in the EU - unless the U.S. copyright term is
extended.
If the United States extends the copyright term to life-plus-seventy years as proposed
in H.R. 989, the EU Member States would be required to protect U.S. works for the
life-plus-seventy years term. Thus, an extension of the copyright term as proposed
in H.R. 989 would serve the dual purpose of providing U.S. copyright owners with
extended protection in the EU as well as in the Uiuted States. This would benefit
the copyright owners of many U.S. works by allowing them to exploit their works in
the EU and the United States for an additional twenty years and reap the rewards
therefrom.
For many other U.S. works the copjoight owner will get the benefit of the entire
copyright term in the EU regardless of whether the U.S. copyright term is increased.
For instance, the term of protection in the EU for sound recordings under the EU
Directive is 50 years from publication or creation, while the term of protection in the
United States for soimd recordings is 75 years from first publication or 100 years
from creation, whichever is shorter. As the term of protection in the United States
for soimd recordings is already greater than the EU grants those works ujider the
Directive, the EU Member States could not apply the rule of the shorter term to
sound recordings and the EU Member States would be required to protect U.S.
soimd recordings for the entire EU term of 50 years from publication or creation.
Even though U.S. sound recording producers would not benefit directly in the
European Union from a copyright term exterision as proposed in H.R. 989, sound
recording producers would still benefit in the Uruted States by getting an additional
twenty years in which to exploit their sound recordings in the Uruted States.
217
Extending the term of copyright protection by twenty years may also benefit the U.S.
economy and, in particular, the U.S. trade balance. Last year, the U.S. copj^ght
industry contributed approximately $40 bilhon in foreign sales to the U.S. economy.
Since the United States is a net exporter of intellectual property products to the
European Uiuon and an increase in the U.S. copyright term would extend the
copyright term for U.S. works in the European Union, an additional twenty years of
protection would likely increase the trade balance of the Uiuted States in the long-
term.
Having established that extending the copyright term as proposed in H.R. 989
appears to offer some short and long-term advantages for U.S. copyright interests, it
should be pointed out that the U.S. copyright-based industry and the public might
benefit even more if the Europecin Uruon eind United States were to harmonize our
copyright laws in other areas as well. There are numerous differences between the
U.S. and EU copyright laws and many benefits may be had by the U.S. copyright-
based industry and the public from extending the copyright term as part of a
comprehensive harmoiuzation agreement with the European Union.
Those that oppose H.R. 989 suggest that the public will be harmed by a copyright
term exterision. These individuals suggest that works will be cheaper and more
widely available once the work falls into the public domain and that the public will
be deprived of these benefits for an additional twenty years if H.R. 989 is enacted.
This contention may be true in theory, but in reality it may have little significance.
Once a work falls into the public domain there is no guarantee that the .work will be
more widely available or cheaper. In fact, there is ample evidence that shows that
once a work falls into the public domain it is neither cheaper nor more widely
218
available than works protected by copyright. One reason quality copies of public
domain works are not as widely available may be because publishers will not
publish a work that is in the public domain for fear that they will not be able to
recoup their investment or earn enough of a profit.
There is also no evidence that once a work falls into the public domain that the
work will be less expensive than its copyrighted coimterpart. In fact, the public
frequently pays the same for works in the public domain as it does for copjoighted
works. Thus, the public may benefit little from a shorter term. The only parties that
benefit from a shorter term are the parties who exploit public domain works. An
argument could be made that these individuals are not deserving of the commercial
windfall from a shorter term as they have not created any new works for the
public's benefit. If anyone is deserving it is the copyright owners because they or
their assignors are the ones that have taken the time and effort to create new works
for the public to enjoy.
Opponents of H.R. 989 also suggest that an additional twenty years of protection as
proposed will not be sufficient incentive to increase the number of works created.
They contend that an author would create a new work regardless of whether the
term is life-plus-seventy years or life-plus-fifty years. We believe that this
contention misses the point. It is imlikely that an author would create a new work
solely because the term was life-plus-seventy years but that very same author would
not create a new work because the term would be only life-plus-fifty years. This,
however, does not mean that the potential of greater rewards provided by a
cop3Tight term extension would not be an incentive for some authors to create more
new works for the public to enjoy.
219
Granting a copyright term extension as propose in H.R. 989 would provide copyright
owners with an additional twenty years in which to exploit their works. The
additional twenty years will enable copyright owners to increase the exposure of
their works. This would result in greater financial rewards for the authors of the
works, which will in turn, encourage these authors to create more new works for
the public to enjoy.
In the past. Congress has foimd it necessary to change the copjrright law to adjust to
economic, social jmd technological changes. We are already immersed in a
technological revolution that demands we take a close look at our copyright regime
and once again alter our copyright laws to keep pace with these technological
changes. As we speak, we are at the dawn of the digital age which is generating
unprecedented new challenges and opportunities for the copyright world. Congress
and the Administration are presently addressing many of these challenges. For
instance, there are two bills pending before Congress that would give a limited
performance right in sovmd recordings disseminated by digital means.
Similar to the two performance rights bills, H.R. 989 also recognizes the sigiuficance
of adequately protecting digital works. Granting a twenty-year copyright term
extension will encourage copyright owners to restore and digitize works that are
about to fall into the public domain. This will ensure that many celebrated works
are preserved so that future generations can enjoy quality copies of these works.
Without a copyright term extension, copyright owners will have little incentive to
restore and digitize their works. If many of these works are not restored, they might
deteriorate over time and our children would be unable to enjoy these works as we
have.
220
Increasing the copyright term may also help to reaffirm the role of the United States
as a world leader in copyright protection. By taking the lead, and increasing
protection in the United States, we encourage our trading partners to follow our
lead and increase the term of protection. If other coimtries increase their term of
copyright protection, then U.S. copyright owners will be able to increase the rewards
they receive for their works by exploiting their works in these countries for a longer
period of time and therefore, they will have more incentive to create new works for
the public to enjoy.
The United States has been and will continue to be a leader in the copyright field.
We have gained this reputation for leadership in this area by providing strong
copyright protection and by making well-informed, justifiable changes to our
copyright law as necessary to keep pace with changes in society and technology. As a
result of the strong protection afforded by our copyright law, the U.S. copyright
industry has become one of the largest and fastest growing parts of the U.S.
economy. The U.S. copyright industry contribute more to the U.S. economy than
any other manufacturing industry and comprises almost four percent of the
nation's Gross Domestic Product. Further, the annual growth rate of the core
copyright industries has been more than twice the growth rate of the whole
economy. This success resulted only after making changes in our copyright policies
and practices after careful consideration of all the factors.
After careful consideration of aU the factors, the Administration supports H.R. 989.
221
Mr. MOORHEAD [presiding]. Well, thank you all very much.
I'm sorry I couldn't be here for all of your testimony, but I've got
two markups going at the same time. I can't be every place at once.
Mr. CONYERS. Commissioner Lehman was exceedingly brief this
morning. [Laughter.]
I wanted you to know that.
Mr. MooRHEAD. Does the ranking minority member of the full
committee have questions of this panel?
Mr. CONYERS. I don't. I was going to ask Ms. Peters to give us
some ideas about what the legislative suggestions she made would
look like, but, as usual, Bruce Lehman's talked me out of whether
we really want to make those changes or not.
You know, what — this is a really big business going on here, and
I'm still provincial enough to wonder about the little guys and how
we can continue to expand their interests and their protection. I
mean, even though we are proud of our culture and support all the
music and the movies and the record-playing, and so forth, some
of the creators have received short shrift in the past, and we're try-
ing to bring our society out of that.
And to the extent that while we're looking at these measures
that we can keep remembering some of the jazz musicians that
were overlooked in a different era and other contributors, that
would be my concern. And if any of you have any comments about
that, I'd be delighted to entertain that.
Ms. Peters. I'd like to respond on the point that I made, which
is that the way that the law was put into effect, which Mr. Lehman
pointed out, was if the work was unpublished, it was protected per-
petually, and those works came under the Federal law on January
1, 1978. The law gave them a 25-year term of protection, and if
they were published in that 25 years, 25 years more.
What I'm talking about are photographs, letters, manuscripts
from 1780, 1790, 1820 which have not been published in the 17
years since 1978, where a number of institutions have been prepar-
ing them for distribution to the American public. We're not talking
about any of the works that have commercial life and where a pub-
lisher has taken them and published them. Where those works
have been published, we support the additional term. So we're real-
ly only talking about the works that are sitting, that have seen no
use, and in the 17 years since the passage of the law nobody has
published them; I don't think that much music is in this category.
I think it's mostly photographs and letters, the kinds of things that
historical societies basically collect.
Mr. CoNYERS. Commissioner, does that accommodate some of
your reservations on that point?
Mr. Lehman. Well, I don't think that this is an earth-
shatteringly significant subject, but I wanted to point out to the
committee that, until 1978, these works, even if they may have
been created in 1820, enjoyed perpetual copyright. There is an ar-
gument that one of the incentives to disseminating works to the
public is to provide some kind of exclusivity to a publisher who is
able to obtain those rights.
So I think there are two sides to the matter. The question is:
would some kind of eleemosynary organization be encouraged to
disseminate works by virtue of not having to clear any rights, and
23-267 96-8
222
thus, be more likely to make the work available, or would a com-
mercial organization, who might be spurred by rights have the in-
centive to get the works out?
This wasn't just something we considered in my office; every sin-
gle department of the administration with any involvement in
this — the Justice Department, the U.S. Trade Representative, the
Education Department, and others — support this view. On balance,
we felt that the commercial incentive of the additional period of
time warranted supporting the legislation above and beyond even
the international implications.
Mr. CONYERS. Now my colleague, Mr. Sensenbrenner, had ob-
served that his legislation should be reported out or given the same
contemporary consideration that the measure before is, and it was
my impression that all of that work was in negotiations and that
the negotiations weren't as hopeless as they were referenced this
morning. And I was just wondering, does anybody have any update,
any late flashes that we could be apprised of here? An3^hing you
can tell us
Ms. Peters. Well, the only part that I know is that negotiations
are ongoing and that we would hope to see them continue. Person-
ally, on similar legislation a year ago, I wrote to the then commit-
tees basically opposing that kind of legislation. The complaint
seemed to be with business practices rather than the way that the
performing rights were handling the rights that is rather than with
the extent of the rights. I'm somebody who feels very strongly that
narrowing the rights with respect — it's called section 110(5)— would
violate our international treaty obligations and would send exactly
the wrong signal to the rest of the world.
Mr. Lehman. The Register has put her finger on something
that's extremely important. We already have enough compulsory li-
censes in U.S. copyright law, and enough difficulties attempting to
harmonize on a global basis where it is to our benefit on this basis,
I think that Mr. Sensenbrenner's legislation would be ill-advised.
However, I don't know that we've cleared that position in the ad-
ministration. If you have a hearing on it, I'm sure that we will be
able to offer more comprehensive testimony.
It's important to understand that the performing arts societies
are — or at least ASCAP is currently covered under a Justice De-
partment antitrust decree and we have a long history of antitrust
regulation. Further, as Ms, Peters points out, the appropriate way
to deal with business practices that are alleged to be anticompeti-
tive, is through antitrust law, rather than mixing competition prin-
ciples with the basic copyright law.
Mr. CONYERS. Ambassador, any comments on the above?
Ms. Barshefsky. No comments.
Mr. CONYERS. OK. Thank you very much, Mr. Chairman.
Mr. MOORHEAD. The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
I don't have any questions at this time. I do very much support
this legislation. I think the witnesses have all very articulately
stated the merits for it.
Thank you.
Mr. MooRHEAD. The gentlelady from Colorado, the ranking mi-
nority member of the subcommittee.
223
Mrs. SCHROEDER. Thank you, Mr. Chairman. I apologize for
being late, but being one of the 24 targeted— or 28 targeted— on
that list, we had a press conference to point out we did not appre-
ciate being labeled. , n^. ^, r^rjr
So I would put my opening statement m the record, it that s OK.
[The prepared statement of Mrs. Schroeder follows:]
224
Prepared Statement of Hon. Patricia Schroeder, A Representative in
Congress From the State of Colorado
I thank the Chairman for scheduling this hearing. As a cosponsor of
H.R. 989, I am pleased that we have this opportunity to hear from this
distinguished group of witnesses, and to identify any issues that we may need to
address in terms of refining this bill as we move to markup. I understand that
the Chairman is looking at July 27 for a markup of this bill, and I would
certainly support that, and hope we can work on a bipartisan basis to move this
bill forward.
H.R. 989 represents an important harmonization ~ even though it is an
imperfect harmonization ~ because without it, U.S. copyright owners will
receive less protection in the European Union than their E.U. counterparts. I
think it is very important that we make sure that U.S. copyright owners are on
an equal footing in Europe with E.U. copyright owners.
The evidence is clear that this change will benefit the U.S. trade balance,
and I think that is a significant factor. Passage of H.R. 989 will also signal our
commitment to provide strong protection of intellecmal property, both
domestically and internationally. It is critical that the United States continue to
play a strong leadership role internationally in the development and enforcement
of intellectual property rights, and in the ongoing effort to achieve
harmonization where possible.
At the same time, I am interested in hearing about aspects of the bill that
225
our witnesses believe can be improved. I know from reviewing the written
testimony, for example, that there are concerns that libraries, educational
institutions and archives may suffer unintended negative impacts in their efforts
to preserve and provide access to older copyrighted works for educational use. I
want to make sure that we look carefully at those issues and take any steps
necessary to make sure that those concerns are addressed. There are also
concerns about works for which the time period for exercising termination
under section 304 has already lapsed, and about unpublished works covered by
section 303.
I join the Chairman in welcoming our witnesses today, and look forward
to hearing your views, and in particular, your suggestions for any fine-tuning
that would strengthen this bill as it moves forward.
226
Mrs. SCHROEDER. And let me say, Ms. Peters, it's very nice to
have you with your voice back.
Ms, Peters. With my voice back. Thank you very much.
Mrs. SCHROEDER. Absolutely.
Commissioner Lehman, you said that the U.S. copyright-based
industry and the public could benefit even more if we harmonized
our copyright laws in further areas. Would you like to provide a list
for the record or could you tick them off, or what other additional
harmonizations should we consider?
Mr. Lehman. I think in previous testimony before the committee
I've indicated some of the areas. For instance, at the present time,
the United States has a law that governs sound recordings that is
not compatible with most of the rest of the world, and in particular,
the European Union. Now the legislation that is pending before
this the subcommittee, that I believe you and the chairman are
sponsors of, does move us in that direction, but it only moves us
part of the way there. So that continues to be a problem area.
We also have differences in rental rights between the United
States and our foreign trading partners. At this point I wouldn't
want to propose changing that, but we should understand that the
international negotiations in this area will probably only bear so
many differences in the system. If we're going to retain anomalies
in U.S. copyright law that currently exist, to the extent that we can
find areas of common agreement with our trading partners, it
makes it easier for us to come to that agreement that we all seek.
One of the areas that will probably be coming to your attention
that we are discussing with Europe right now, is the protection of
noncopyrightable database. The European Commission is moving to
promulgate a new directive on noncopyrightable data base. Non-
copyrightable data bases are very important collections of data,
particularly those that might be in a computer, that don't meet the
test of authorship. In our own law we had a famous Supreme Court
case, the Feist case, which very much narrowed the scope of copy-
right protection for such extremely valuable commercial works.
These works will be very valuable on the global information super-
highway.
Europe has really taken the lead in this area, I think, it is rare
for Europe to be more proactive than we are in trying to address
that problem. That's an area I would look to where we might wish
to take a look at their directive and consider harmonization in the
same way we do here. So if there are areas where we can move in
their direction, then it makes it easier for them to move in our di-
rection or to accommodate some of the remaining anomalies that
will be very hard to remove in U.S. law for an extended period of
time.
Mrs. SCHROEDER. Ms. Peters, you said you had concerns for li-
braries and educational institutions and their ability to carry out
preservation and access, and so forth. Do you have some language
or an3^hing that could help us with those concerns?
Ms. Peters. We would certainly be — we'd like to try to do that
for you. We're really not talking about any work that is commer-
cially available. If it's commercially available, it's not an issue in
a library. The American public has access to it. And the older the
work is, the more difficult it is to secure permission to use it. So
227
we would like to take the opportunity to try to give you some very
narrow language to solve some of those problems, to work with the
library associations to see that their needs are met.
Mrs. SCHROEDER. We would really appreciate that.
You also raised some questions about the beneficiaries of the
extra 20 years and who they should be, especially where there's no
existing termination right. Do you or Mr. Lehman have anything
you want to say about that.
Ms. Peters. I just noted that in general the Constitution talks
about authors, and authors have benefit, and that in 1976 the way
that we handled that with giving the author the right to terminate,
and that for some of the works that right has passed, and that
that's a question. We're not actually advocating a position one way
or the other because we actually are the ones who record the termi-
nation notices, and we get very, very small numbers compared to
the works at large. I think last year we looked at what we got as
far as termination notices, and it was something like 549, 541 of
which covered musical compositions, and most didn't have multiple
titles. So when you look at that small percentage in relation to the
work as a whole, I'm not really sure where you want to come out,
but I just did point out that in one instance there is no way for
the author to basically recoup the extra 20 years, where all the
other authors have that possibility.
Mrs. Schroeder. So you don't have any solution for us, but
you're just
Ms. Peters. Well, I'm basically saying that
Mrs. Schroeder [continuing]. Making us mindful of it?
Ms. Peters [continuing]. Possibly you could consider another ter-
mination for those works, but I think that's your choice. What you
really have is every other author having the ability to renegotiate
for the extra 20 years, and there's this one little narrow category
where that opportunity has passed.
Mrs. Schroeder. I really have no further questions, Mr. Chair-
man. I just want to thank Ambassador Barshefsky. I really did ap-
preciate the terrific work you did in China. I know the committee
was very, very impressed by the intellectual property agreement
that you got, and you kind of pulled the rabbit out of the hat. So
thank you very much
Ms. Barshefsky. Thank you.
Mrs. Schroeder [continuing]. For your hard work.
Thank you, Mr. Chairman.
Mr. Moorhead. The gentleman from Ohio, Mr. Hoke.
Mr. Hoke. Thanks, Mr. Chairman.
There are always winners and losers, and I'm trying to figure out
who the winners are and who the losers are with this legislation.
Maybe we could start with that.
IVls. Peters, have you got any thoughts on it?
Ms. Peters. Who are the winners?
Mr. Hoke. Well, the winners are fairly obvious.
Ms. Peters. OK.
Mr. Hoke. But go ahead.
Ms. Peters. The winners are obvious. It's the owner of works
that are commercially viable and where there are new uses, espe-
cially because of new technology. Authors and other copyright own-
228
ers should be the beneficiary of that, and so they v/in the extra 20
years and they certainly, with regard to Europe and other coun-
tries that go to the longer term, have the ability to recoup that
money that they're really entitled to, because it's their works that
are being used.
On the loser side, it's less clear. I believe that there's a public
benefit in this legislation. However, you have to be midful of the
fact that it is very difficult to find copyright owners in some cases
and that there maybe legitimate and beneficial uses of those works.
In my statement we pointed out that Canada, Japan, and a num-
ber of countries have specific provisions dealing with situations
where the copyright owner cannot be located, and I think it's time
that this country looked at this issue.
And I do feel very strongly, that the works that haven't been
published in the 17 years since the effective date of the current
copyright law should enter the public domain in 2003. The likeli-
hood of their being published seems to be very small and the bene-
fit to be gained by the American public is large. I could give a list
of the things that are just sitting in the Library of Congress that
fall into this category.
Mr. Hoke. And what will happen exactly with those?
Ms. Peters. The Library has the ability to make them available
to the public. We could either make them widely available through
the Internet or could put them into class rooms. I have in my testi-
mony an example where we've cleared an entire collection except
the letters, but the letters are absolutely critical to the collection.
One of the collections that we're going to be working on next year,
but with the help of the family, is the works of Leonard Bernstein.
The family would like to see the collection disseminate to the
American public. We're going to have to work out the various nec-
essary clearances of rights.
I think you're going to hear from a lot of people — and we cer-
tainly did that many people use the public domain to spur new cre-
ations, and that much of the material that authors use is material
that's in the public domain.
Mr. Hoke. What does the word "use" mean there?
Ms. Peters. "Use" means to basically take a work and create a
new version of that work. I was reading on the plane the other day
about "Little Women." "Little Women" is in the public domain. A
key point of the article was that now there are many, many ver-
sions of "Little Women," and some of the versions actually have
Beth living because Americans don't like young women to die.
When a work is under copyright, you can't have that happen. You
have to have permission of the copyright owner to make a new ver-
sion of the work. Once it's in the public domain, people can take
it and change it. So to the extent that there are people who basi-
cally create new derivative works, that
Mr. Hoke. And they don't have to — but they don't have to give
an attribution to the derivation. They don't have to make a
Ms. Peters. Well, there's actually a question about moral rights
that I'm not going to get into. The issue is whether or not you have
to give credit to authors. The United States is a member of the
Berne Convention which requires that we provide a right of attri-
bution at least during the author's life and 50 years after that. I
229 V
guess Louisa May Alcott's been dead longer than that. So, no, they
really don't have to.
But I think there's a lot of documentary films — I know that the
film that Ken Burns did about the Civil War, where a lot of the
footage came from material in the public domain that was in the
collections in the Library — I'm talking about those kinds of works
where there could be a down side caused by the extension of the
copyright term.
Mr. Hoke. Has anybody calculated on the up side to the holders
of the copyright what the additional 20 years means in terms of
dollars?
Ms. Peters. Somebody in their testimony has that.
Mr. Lehman. I don't think we have a figure within the adminis-
tration, but I'm sure that an estimate could be developed if you're
willing to spend taxpayer money or other resources to have econo-
mists work on it. Nevertheless I think we can take judicial notice
of the fact that the period that we're talking about going to in the
fairly near future is a period in which U.S. commercial copyrighted
works exploded onto the international scene in a very big way. So
there is very little question that very large sums of money will be
flowing into the U.S. economy. You mention, winners and losers?
In many ways, Congress in its struggle to try to balance the books
of the Federal Government is going to be a winner because, with-
out increasing a single tax rate, there's going to be considerable ad-
ditional growth in the GDP as a result of this bill. Keep in mind
that copyright-based industries are one of the biggest U.S. indus-
tries, I think about the second biggest exporting industry in the
United States, and there will be tax paid on this revenue that's
flowing into the country.
Mr. Hoke. How much are we talking about?
Ms. Barshefsky. If I may — if I may comment, sir
Mr. Hoke. Please.
Ms. Barshefsky. In my testimony I've indicated that, based on
estimates from ASCAP with respect to the music industry, one of
the music-collecting societies, that works that would otherwise
have not — that some $14 million annually in revenue would be re-
ceived as a result of the term extension. The Motion Picture Asso-
ciation estimates that in the earlier years additional term exten-
sion would result in relatively minor revenue additions, a million
dollars by the year 2000. But as you go out to 2010, 2020, the num-
bers rise very dramatically to between $160 million and $200 mil-
lion annually.
Mr. Hoke. Well, I appreciate that. I don't know how, Mr. Leh-
man, you can extrapolate that as having some sort of material ef-
fect on our GDP that's over $6 trillion. You're talking about a $14
million addition. I'm not — am I missing something here?
Mr. Lehman. Well, those were figures from two industry trade
associations from ASCAP, a performing arts society, which has an-
nual revenues of perhaps, a half a billion dollars, and from the mo-
tion picture industry, which is a big industry, and has revenues of
perhaps $10 billion. In total, I think the copyright industries are
well over $200 billion. So that's why I say, to really have an accu-
rate study, you would have to get some Ph.D. economists and really
do an extensive analysis. But our view is that we can take judicial
230
notice of the fact that there probably will be considerable additional
revenue.
Mr. Hoke. All right. Well, considerable additional revenue,
though, is we're — I mean, if we order a — or we increase it by an
order of magnitude, we could be saying maybe $140 million or $200
million. I mean, this is not a material impact on our economy. I
just want to make that point.
The last thing I want to say is this, or I really want to ask you:
let's get to the other side of this question, which I think is more
interesting. I mean, we just went from 50 years to 70 years. We're
talking about a new — we're talking about an information age.
We're talking about new technology. We're talking about some
works that will have lasting impact. I mean, maybe the works of
Gershwin may be considered to be like the works of Mozart in 200
years. Why 70 years? Why not forever? Why not 150 years?
Ms. Peters. Actually, that's a very good question. There cer-
tainly are proponents of perpetual copyright: We heard that in our
proceeding on term extension. The Songwriters Guild suggested a
perpetual term. However, our Constitution says limited times, but
there really isn't a very good indication on what limited times is.
The reason why you're going to life-plus-70 today is because Eu-
rope has gone that way, and I think-
Mr. Hoke. Well, let's follow Europe; they're
Ms. Peters. No, what I'm saying is even if you look at the Euro-
pean Commuity, it largely settled on a term of life-plus-70 because
Grermany had that term. That was the longest term in the Euro-
pean Community. Had Germany not been there, that wouldn't have
been what was chosen as the community term of protection.
So I can't answer that question. I don't know what it would be.
If you look at the history of increasing the term in the United
States, every so often people say it needs to be increased because —
and they give a list of reasons, and it's up to you as Congress to
decide whether or not it's in the public interest.
Mr. Hoke. Thank you very much, Mr. Chairman. Thank you very
much.
Mr. MOORHEAD. The gentleman from North Carolina, Mr. Coble.
Mr. Coble. Mr. Chairman, I apologize for my belated arrival. I
had two or three other places to be. I apologize to the panel as well
for having missed your testimony.
This may have already been asked, but I'm just curious to know,
Commissioner, what you and your colleagues think about this.
There have been proposals that, in lieu of the author or, more real-
istically, his or her heirs, receiving money from licenses or royalties
earned during the extra 20 years, that that money be placed in a
fund for the promotion of arts and authors in general. What would
be you all's response to that?
Mr. Lehman. The administration has considered that issue and
has concluded that we do not support that approach at this time.
Mr. Coble. And I don't mean to imply that I do. I just was curi-
ous to know what you all had to say about that.
Ms. Peters. I would just speak, on behalf of the Copyright Of-
fice. We studied Senator Dodd's bill, which was similar to that. He
had an Arts Endowment Act of 1994, where you'd auction off copy-
rights at the end of the term. There was also a bill that would ere-
231
ate a public trust. In general, we have been opposed to such bills,
especially on international grounds. One of the things that you
don't want to do is place support for the arts on the backs of au-
thors and other copyright owners. Moreover, it wouldn't be fair to
only fund Americans with money that is being raised from works
of all countries. So although I think everybody's in support of the
arts and wants to see the arts adequately funded, you'd have to
study very carefully any kind of a proposal that would use either
copyright or copyrighted works as a vehicle to do that.
Ms. Barshefsky. Sir, if I may add that, with respect to our copy-
right policy and the European Union, we've consistently opposed
the mandatory allocation of funds to subsidize domestic cultural ac-
tivities. There's a great concern that, were the United States to
move in that direction, the European Union and other trading part-
ners might try and imitate our actions, but in a manner even less
desirable than they currently have.
Mr. Coble. Thank you. Thank you, Mr. Chairman.
Mr. MOORHEAD. The gentleman from Pennsylvania, do you have
any questions you wish to ask?
Mr. Gekas. Yes, where are we? [Laughter.]
That's my question and I'll reserve my time.
Mr. MooRHEAD. I've been told that a number of our early motion
pictures, which are certainly a part of our heritage in which we
have been trying, through various pieces of legislation, to preserve
at least the best of them, but we've been told that those that are
not under copyright any longer are rapidly deteriorating because
there's no one who feels the responsibility to spend money on them
and to keep them and care for them. I guess that happened a great
deal in the early days of motion pictures when they didn't cost as
much.
Do you think this is true and that legislation of this kind will be
of assistance in that respect?
Ms. Peters. I can't — personally, I don't know whether it's true
or not. I'm aware that the Library of Congress which has one of
the largest film collections in the world, is dedicated to preserva-
tion of films. Public money goes to preserve those films. There's a
new film preservation bill which would provide partial funding; the
Government would be funding part, but the rest of the funding
would come from copyright owners, that is, the studios.
Film preservation is critical to this country s cultural heritage,
and there are a number of ways to do it. However, I really don't
know whether or not having the work in the public domain has af-
fected film preservation efforts.
Mr. MoORHEAD. There's a limited number of pictures, motion pic-
tures, that come under that film preservation. Each year we add
a few.
Ms. Peters. Twenty-five. I think you're talking about the Film
Preservation Board adding 25 films to the film registry each year,
but there's another effort to basically preserve films in general as
part of our cultural heritage.
Mr. Lehman. Mr. Chairman, the very situation that you just de-
scribed was one of the things that the administration considered in
deciding to support the legislation. It was persuasive to us, because
we had some anecdotal evidence that resulted from when certain
232
works were brought back out of the pubUc domain as a part of the
NAFTA agreement.
I think that there is an evolving consensus in U.S. society on a
bipartisan basis that marketplace solutions are preferable to Gov-
ernment regulation and bootstrap schemes for accomplishing larger
social purposes. To the extent that you can provide an economic in-
centive for the preservation and dissemination of works, you're on
pretty solid ground, and, of course, that's why the copyright law
and intellectual property is such a magnificent thing.
Getting back to the earlier question by, I believe, Mr. Hoke,
about when should copjright expire, this is an evolved law but
many of the decisions that were made were very arbitrary. One of
the things that is now being talked about on an international basis
in connection with the new global information infrastructure and
the digital highway and has been floated by our Japanese trading
partners, is the idea that perhaps there ought to be some kind of
new intellectual property right specifically for people who take
something which even might be in the public domain, and then re-
vive it, digitize it. Obviously, it would only be in their particular
digitized version of it, but give them some incentive for taking
something and adding value to it, so that it can be made available
to people. This is something that is being talked about. Certainly,
to the extent that copyright provides an economic incentive for peo-
ple to rerelease works, it's an advantage of this bill.
Mr. MOORHEAD. You state that the grant of copyright term ex-
tension may encourage copyright owners to restore and digitize
works that are about to fall in the public domain.
Mr. Lehman. That's correct.
Mr. MoORHEAD. As Chairman of the administration's Task Force
on Information Infrastructure, do you believe that this bill would
encourage copyright owners to add to the content which will be
available to the Internet?
Mr. Lehman. Yes, I do.
Mr. MoORHEAD. I know this problem of money has been dis-
cussed here several times and the questions that are asked — I
think one of the big problems that we run into here is the fact that
copyrighted works in other parts of the world are being protected
beyond the term limits of our copyright, and, yet, our own people
will be shortchanged in that respect as far as use in other parts
of the world. To protect those has to be totally a plus for our coun-
try and no negatives whatsoever because, to the extent that it
brings in additional revenues, additional taxable income, and so
forth, regardless of whether it's small or large, will be a plus for
us. True?
Ms. Peters. Can I just say one thing?
Mr. MOORHEAD. Yes.
Ms. Peters. I agree, and I support this bill wholeheartedly.
There is a cost, though, in the United States. By adding 20 years
in the United States, then people have to pay in the United States.
So although I support it, and agree that we would be getting addi-
tional revenue from the foreign countries of the European Union,
there is an impact in the United States itself.
Mr. MOORHEAD. Well, I have no further questions. I don't — does
any member of the panel have an additional question?
233
[No response.]
Mr. MOORHEAD. If not, we want to thank you very much.
Ms. Barshefsky. Thank you.
Ms. Peters. Thank you.
Mr. Lehman. Thank you, Mr. Chairman.
Mr. Moorhead. Our next witness will be Mr. Quincy Jones. Over
the years Mr. Jones' career has encompassed the roles of composer,
record producer, artist, film producer, arranger, conductor, instru-
mentalist, TV producer, record company executive, magazine found-
er, and multimedia entrepreneur. He's won 26 Grammy Awards,
the Recording Academy's Trustee's Award, and a Grammy Living
Legend Award. He's also an Emmy winner and seven-time Oscar
nominee, and was recently honored by the Academy of Motion Pic-
ture Arts and Sciences with their John Hersholt Humanitarian
Award. He's the chief executive officer of Quincy Jones Entertain-
ment.
Welcome, Mr. Jones.
Mr. CONYERS. Could I, Mr. Chairman, could I add my welcome
to Mr. Jones, our witness?
Mr. Moorhead. You sure can.
Mr. CONYERS. As one who may have known him as long as any-
body in the Congress — we don't like to get into the numbers thing,
but it's a real pleasure to have him come here. It was at some ex-
pense of his time to travel across the country, and it makes me feel
very good because I've seen him in every part of our society except
as a witness in Congress. [Laughter.]
I don't know if you've been doing this a long time or not, but,
Quincy, you are probably one of the last survivors of that part of
the jazz era called "bop," and reviewing this in one of the docu-
ments about you, it made me remember that you tie — through you
have come all the contacts with almost all the musicians — black,
white, Latin, international, local, foreign, domestic, and everything
else. And whenever I used to hear a good tune that I didn't know
who did it, after about three or four times of finding out that it was
you, I probably attributed tunes to you that maybe you didn't do,
but it always fascinated me, that great variety in your repertoire
that you could reach to it. So I'm very, very happy to have you
here.
And thank you for allowing me to say that, Mr. Chairman.
Mr. Jones. Thank you.
Mr. Moorhead. And we felt you needed one more thing to put
in your bibliography. So that's why you can say you're a witness
at a congressional hearing.
Would you summarize your statement in 10 minutes or less, and
then we'll all ask you all kinds of questions.
STATEMENT OF QUINCY JONES, SONGWRITER AND MEMBER,
AMSONG, INC.
Mr. Jones. OK. Good morning, Chairman Moorhead and mem-
bers of the subcommittee. My name is Quincy Jones and I'm a
songwriter, among other things, and a member of AmSong, Inc.
I'd like to take this opportunity also to sincerely thank all of you
here in the administration for your support for this bill. It means
a lot to us.
234
And I'm particularly fascinated with Representative Hoke's state-
ment. I found a whole new view of things there. He just mentioned,
why not forever? I never thought of that before. That's a good one.
AmSong is a not-for-profit association representing a vast cross-
section of America's songwriting community. AmSong's member-
ship ranges from the great American musical estates of Irving Ber-
lin, Ira and George Gershwin, Rodgers and Hammerstein, Hoagy
Carmichael, Johnny Mercer, Henry Mancini, to America's finest
contemporary songwriters, such as Bob Dylan, Don Henley, Billy
Joel, Stephen Sondheim, Alan Menken, Dave Brubeck, and Lionel
Richie, just to name a few.
AmSong is dedicated to the protection of American intellectual
property. And of paramount concern to AmSong's membership, and
one of the reasons that I, myself, became a member of AmSong, is
to ensure that this country provides copyright protection for its citi-
zens' creations for a fair and reasonable period of time.
Several members of AmSong who are unable to testify this morn-
ing have prepared statements in support of H.R. 989, and I'll be
placing — we'll be placing into the record personal statements by a
number of AmSong members, including Bob Dylan and, just most
recently, Don Henley, Stephen Sondheim, Alan Menken, Ellen Don-
aldson, and Mrs. Henry Mancini.
Mr. MOORHEAD. Are you offering those statements for the record
at this time?
Mr. Jones. Yes.
Mr. MooRHEAD. Without objection, they will be placed in the
record.
Mr. Jones. Two weeks ago, on July 1, 1995, the countries mak-
ing up the European Union implemented a uniform term of copy-
right which is that of the life of the author plus 70 years, and as
part of that process these countries have invoked the rule of the
shorter term when determining the extent of copyright protection.
This means that the works created outside of the countries that are
a part of the European Union will be protected for the shorter of
life-plus-70 years or the term in effect in the country when the
work was created. This means that under the current laws songs
such as "In the Heat of the Night," "In the Eyes of Love," both of
which I wrote in 1967, will go out of copyright in 2042, while a
song written in England, France, or Germany in the same year by
an author of the same age as myself, 49 — [laughter] — will remain
protected until 70 years after his death. If the European author
dies at the age of 85 in the year 2018, his work will continue to
be protected until 2088. That's a full 46 years of protection beyond
that which is provided for my work in the United States. And it's
ironic that this great country, which has spawned cultural treas-
ures that are unsurpassed in the world, should deny the creators
of these treasures protections commensurate with those offered in
virtually every democratic nation in the world.
The intent of our copyright laws is to encourage creativity by
guaranteeing the protection for the life of the creator plus two gen-
erations of his or her successors. My own situation illustrates all
too clearly how this intent is not currently being satisfied. I began
writing songs as a young man back in 1948. If I'm 49, I have to
change that. [Laughter.]
235
Like so many people today, I've been blessed with children later
in my life — I have a 2-year-old — indeed, more than 45 years after
I published my first song. And I believe that my children are enti-
tled to the same rights with respect to my songs as the children
of yesteryear born to parents in their twenties. Today people have
a greater life expectancy and they begin families in their thirties
and forties, and such societal changes necessitate a revision of our
current laws.
The alternative to copyright protection is, of course, that works
will fall into the public domain. While the term "public domain" im-
plies that the ultimate public, the consumer, will have free and
easy access to creative works, this is really not the case. The price
of a quality compact disk recording of Beethoven is no less expen-
sive than the price of the latest Pearl Jam LP. This is Leo Tolstoy;
this is John Grisham. This book costs more than John Grisham,
and we know how long Tolstoy's been around. He was influenced
by Alexander Pushkin years ago, 19th century. [Laughter.]
The record company that manufactures the CD does not have to
pay royalties to the Beethoven estate, and these cost savings are
not passed on to the consumer. Beethoven's "Violin Concerto" costs
exactly the same as "Garth Brooks' Greatest Hits." The book pub-
lisher does not need to pay royalties to the Leo Tolstoy estate. And,
again, this is not reflected in the cost of the book to the public.
My songs are my legacy to my children. Because my pre- 1978
works, which represent at least 40 percent of my catalog, are only
protected for a fixed term of 75 years from registration, my catalog
will begin to fall into the public domain when my youngest child
is only 30 years old. And without an extension of the current copy-
right period, my children, my most immediate successors, will be
deprived of their legacy from me while they're still young adults.
And I have no desire at all to see my children be denied that which
I have intended for them.
Fortunately, I have written well over 400 songs in my lifetime,
but we must not forget that there are many songwriters, musi-
cians, particularly blues and jazz musicians, who support them-
selves entirely and their families on the royalties earned from the
three or four songs that they composed that may have become a
hit. An extended term of copyright will make an acute difference
in the quality of life for these artists.
An extension in the term of copyright would also benefit the fam-
ilies of writers, great songwriters, such as Duke Ellington,
Theloneous Monk, Muddy Waters, and Willy Dixon, who early in
their careers were often required to enter into agreements relin-
quishing ownership of their works, and I've seen this happen on
many occasions. The 20-year term extension would give their fami-
lies some of the benefits of ownership that they may have lost in
the first 50 years of their copyright, way past the popularity of the
song.
Just as important to remember is the sad reality that, once
works fall into the public domain, the families of the creators have
no incentive to maintains the works in a format that is useful to
the public. Most of the estates represented by AmSong maintain
extensive archives that are not only sources of information for
scholars, but also serve as cultural resource centers for the public,
236
anxious to perform a special piano concerto by George Gershwin or
an orchestral arrangement by Leonard Bernstein. It is the public
who will wind up losing if an unreasonably short copyright term
puts the archives of these master songwriters out of business.
And, finally, compelling economic factors mandate an extension
of our copyright laws. America's intellectual property is this coun-
try's second largest export, and it also provides a significant reve-
nue base at home. Our country's culture is universally popular. I've
seen it all over the world myself personally. It is heard, seen, per-
formed, and enjoyed everywhere throughout the world.
In light of the recent European Union action, copyright term ex-
tension in the United States has become an essential element in
safeguarding our national economic security. And, moreover, every
year more and more works are falling into the public domain while
they're still commercially viable. This not only deprives the owners
of the works and their families of the benefits of income, but it di-
minishes the flowback of taxable revenues generated from overseas
sales.
Under the existing cop3nright laws, Americans and Europeans are
required to pay for every use of Revel's "Bolero," while neither
Americans nor Europeans are required to pay when using W.C.
Hanle/s "St. Louis Blues," written in 1914. It's kind of difficult for
me to comprehend this logic.
We must extend the term of the copyright in the United States
if we are to continue to reap the economic benefits of our intellec-
tual property in the world and domestic marketplaces. And for all
of the foregoing reasons, it is imperative that we extend the term
of copyright in the United States by 20 years.
I commend you. Chairman Moorhead, for introducing H.R. 989,
the Copyright Term Extension Act of 1995. I urge each and every
member of the subcommittee and every Member of Congress to
support this bill and vote H.R. 989 into law this year.
And I thank you for your time.
[The prepared statements of Mr. Jones, Mr. Dylan, Mr. Henley,
Mr. Menken, Mr. Sondheim, Mrs. Mancini, Ms. Donaldson, Mr.
Schoenberg, Ms. Durham, Ms. Miller, and Ms. Barrett follow:]
237
Prepared Statement of Quincy Jones, Songwriter and Member of AmSong,
Inc.
Good morning, Chairman Moorhead and members of the subcommittee. My name is
Quincy Jones, and I am a songwiiter and member of AiuSong, Inc.
AmSong is a not-for-profit association representing a vast cross-section of America's
songwriting community. .■\mSong's membership ranges from the great American musical
estates of Irving Berlin, Ira and George Gershwin, Rodgers and Haramerstein, Hoagy
Carmichael, Johnny Mercer and Henry Mancini, lo .America's finest contemporary
songuTiters such as Bob Dylan, Don Henley, Billy Joel, Stephen Sondheim, Alan Menken,
Dave Brubeck and Lionel Richie, to name a few.
.AmSong is dedicated to the protection of American intellectual property. Of
paramount concern lo .AmSong's membership, and one of the reasons that I myself became
a member of AmSong, is to insure that this countw provides copyright protection for its
citizens' creations for a fair and reasonable period of time. Several members of AmSong,
who arc unable to testify- this morning, have prepared statements in support of H.R. 989. I
will be placing into the record, personal statements by a number of .\mSong members,
including Bob Dylan. Stephen Sondheim, Alan Menken, Blen Donaldson, and Mrs. Heniy
Mancini.
Two weeks ago on July 1, 1995 the countries making up the European Union
implemented a uniform term of copyright which is that of the life of the author plus 70
years. .As part of that process, these countries have invoked the "rule of the shorter term"
when determining the extent of copyright protection. I'his means that the works created
outside of the countries that are a part of the European Union will be protected for the
shorter of life plus 70 years or the term in effect in the country where the work was created.
This means that under the current laws, songs such as "In The Heat Of The Night" and
"The Lyes Of Love" both of which 1 wrote in 1967 will go out of copyright in vq42, while a
song written in England, France, or Germany in the same year! by an author the same age
as myself, will remain protected until 70 years after his death. If the European author dies
at the age of 85 iii the year 2018, his work will contiime to be protected until 2088. That is
a full 46 years of protection beyond that which is provided for my work in the United
238
States. It is ironic that this great country that has spawned cultural treasures unsurpassed
in the world should deny the creators of these treasures, protections commensurate with
those offered in virtually every democratic nation in the world. The intent of our copyright
laws is to encourage creativity by guaranteeing the protection for the life of the creator plus
two generations of his or her successors. My own situation illustrates all too clearly how
this intent is not currently being satisfiecL I began writing songs as a young man back in
1948. Like so many people today, I have been blessed with children later in my life—
indeed more than 45 years after 1 published my fiirst song. 1 believe that my children are
entitled to the same rights with respect to my songs as the children of yesteryear bom to
parents in their twenties. Today people have a greater life-expectancy and begin families
in their thirties and forties. Such societal changes necessitate a revision of our current
laws.
The alternative to copyright protection is, of course, that works will fall into the
public domain. While the term "public domain" implies that the ultimate public, the
consumer, wiU have free and easy access to creative works, this is really not the case. The
price of a quality compact disc recording of Beethoven is no less expensive than the price of
a Pearl Jam CD. The record company that manufactures the CD does not have to pay
royalties to the Beethoven estate and these cost savings are not passed on to the consumer.
Similarly, the price of a quality paperback by Henry James is no less than the price of the
latest John Grisham release The book publisher does not need to pay royalties to the
Henry James estate, and again this is not reflected in the cost of the book to the public.
My songs are my legacy to my children. Because my pre- 1978 works, which represent
at least 40% of my catalogue, are only protected for a fixed term of 75 years from
registration, my catalogue will begin to fall into the public domain when my youngest
child is only 30 years old. Without an extension of the current copyright period, my
children - my most immediate successors - will be deprived of their legacy from me while
they are still young adults. I have no desire to see my children be denied that which 1
intended for them.
Fortunately, I have written well over 400 songs in my lifetime. But we must not forget
that there are many songwriter/ musicians, particularly blues and jazz musicians who
support themselves and their families on the royalties earned from the three or four songs
that they composed. An extended term of copyright will make an acute difference in the
quality of life for these artists. An extension in the term of copyright would also benefit
-2-
239
the families of songwriters such as Muddy Waters, Willie Dixon, and Duke Ellington, who
early in their careers, were often required to enter into agreements relinquishing ownership
of their works. The 20 year term extension would give their famiUes some of the benefits of
ownership that they may have lost in the first 56 years of copyright.
Just as important to remember, is the sad reality that once works fall into the public
domain, the families of the creators have no incentive to maintain the works in a format
that is useful to the public. Most of the estates represented by AmSong maintain ev:tensi\"e
archives that are not only sources of information for scholars, but also serve as cuUural
resource centers for the public, anxious to perform a special piano concerto by Geoige
Gershwin or an orchestral arrangement by Leonard Bernstein. It is the public who will
wind up losing if an unreasonably short copyright term puts the archives of these master
songwriters out of business.
FinaUy, compelling economic factors mandate an extension of our copyright laws.
.American intellectual property is this country's second largest export and it also provides a
significant revenue base at home. Our country's culture is universally popular; it is heard,
seen, performed, and enjoyed everywhere throughout the world. In light of the recent
European Union action, copyright term extension in the United States has become an
essential element in safeguarding our national economic security. Moreover, every year
more and more works are falling into the public domain while they are still commercially
viable. This not only deprives the owner of the works and their families the benefits of
income, but it diminishes the flowback of taxable revenues generated from overseas sales.
We must extend the term of copyright in the United States if we are to continue to reap the
economic benefits of our intellectual property in the world and domestic marketplaces.
For all of the foregoing reasons, it is imperative that we extend the term of copyright
in the United States by 20 years. 1 commend you. Chairman Moorhead, for introducing
H.R. 989, the Copyright Term Extension Act of 1995. I .urge each member of this
SubcomiHittee, pnd every gjemba" of Congress to suppon this bill and vote H.R. 989 into
240
[The prepared statement of Mr. Dylan follows:]
Prepared Statement of Bob Dylan
My name is Bob Dylan and song writing is my profession. Allow me to express myself concerning
the Copyright Term Extension Act of 1995.
My first song was published by Witmark Music in 1961. My status at the time was 20 years old,
unmarried, with no children. My situation changed to include a wife and family and the writing of
many more songs.
The impression given to me was that a composer's songs would remain in his or her family and
that they would, one day, be the property of the children and their children after them. It never
occurred to me that these songs would fall into the pubic domain while my children are still in the
prime of their lives, and while my grandchildren are still teenagers or young adults. Yet this is
exactly what will occur if H.R.989 is not enacted.
Our current term of copyright is a flat 75 years for works written prior to 1978, and life plus 50
years for works written on or after January 1, 1978. This term is significantly shorter than the
term of copyright adopted by the fifteen member nations of the European Union, the countries
making up the European Economic Area and the numerous other countries which will be
changing their copyright laws to provide for a term of life of the author plus 70 years.
The discrepancy between the term of protection offered to American creators and the term of
protection offered to European creators is particularly striking. European audiences have always
enthusiastically welcomed American popular musicians. They buy our records, they play our
music over the airways, and they attend our concerts, often in sell-out crowds. And yet, due to
the apphcation of the rule of the shorter term, our works will cease to be protected long before
European works of comparable age. The enactment of H.R.989 will go a long way towards
equalizing the playing field for American and European works and rectifying the injustice to
American creators.
It is important for the congress to enact H.R.989, and its companion bill. S.483 this year.
241
[The prepared statement of Mr. Henley follows:]
Prepared Statement of Don Henley
Dear Chairman Moorhead, Members of the Subcommittee on Intellectual Property,
and distinguished members of Congress;
My name is Don Henley. I am a songwriter, music publisher and recording artist.
I appreciate the opportunity to express my support for H.R. 989, the Copyright Term
Extension Act of 1995.
You have heard many compelling arguments for the exter^ion of the term of
copyright protection for American intellectual property to match that of the
European Union Directive of life plus 70 years. The members of the United States
creative community have testified that this is a trade matter, an economic issue of
vital importance to the American participation in the global marketplace. You've
been told that our current laws create what is essentially a twenty-year free ride to
the European Union — they can use and abuse o\ir works for free, while we have to
pay for the use of theirs. You've also heard about the questionable real value to the
people of public domain material. It is all this, but it is very much more.
On a daily basis, I wear many hats. I care passionately about the preservation of our
dwindling wilderness areas, and I have devoted a great portion of my life and my
life's work to make sure that a respect for the land and the protection of our
environment is a part of the legacy we leave our children. We have found that in
order to foster this respject and protection, it has been necessary to enact laws. Many
of you are acquainted with me in this role.
I am, however, first and foremost, an artisan, except my tools are words and
melodies instead of brushes and canvas. I cut, shape, refine, and position each \/ord
and each note until I have crafted a song that I believe is true. My songs are an
expression of who I am and what I stand for, and the laws which govern the results
of my endeavors demand that people respect my work. The copyright law provides
me with the right to protect my work from those who would otherwise compromise
its integrity, who would exploit, abuse and mutilate my art. I do not allow my songs
to be used in conjunction with advertising commercials, and I am extremely
selective about other ancillary uses of my music in films and other projects. The
law g;ives me this right, but or\ly for a limited time.
No one would question my right to prevent someone from painting graffiti on my
house or from stealing its contents. No one would question my right to benefit
from its value or to ensure that my heirs benefit from its value. And if I were to
242
Page Two July 7, 1995
design and build a house, instead of a song, I could own this house and would have
the right to protect it throughout my lifetime. I woiild be able to pass this along to
my children, and it would be theirs to pass to their children and so forth.
But I don't make houses or other tangible property. I just make songs, and they can
only belong to me and my family for a limited time. I can't erect a fence around my
kind of property to defend against trespassers. As a creator of intellectual property, I
must rely on the law for protection, both economic and artistic.
As much as I believe that we are inextricably connected to one another in our
individual and collective impact on the global environment, I also believe ours has
become a global economy, and American creators should be accorded at least as
favorable a protection at law as creators in other ccnmtries. We cannot chastise
countries which do no provide as high a level of copyright protection as is provided
under American law, when American law does not provide as high a level of
protection as laws in other western countries, such as the European Community.
I urge you to pass H.R. 989, to extend the maximvun protection to American
intellectual property, to encourage the creative minds in America to continue to
produce the songs, the plays, the books, the films, the photographs, the designs, the
software - the art - that inspires the world.
Thank you.
243
[The prepared statement of Mr. Menken follows:]
Prepared Statement of Alan Menken, Composer
I am sorry I can't be with you today to discuss the Copyright Term Extetision Act in person.
However, the terms of the proposed act are very important to me both professionally and
personally and I want to take this opportunity to make my position clear to the Members of the
House.
You may know me as the composer of Pocahontas. The Little Mermaid. Beauty and the Beast
and Aladdin. I have made my living as a composer since my first musical-theatre shows God
Bless You. Mr. Rosewater and Little Shop of Horrors and I've been fortunate enou^ to have
received many awards for my work including six Academy Awards and nine Grammy's. While
recognition of one's work is always gratifying, I am very concerned that the copyright protection
of my work and the interests of my family receive the maximum possible protection.
The basic theory of copyri^t duration is that protection should exist for the life of the author
and tvvo succeeding generations. The life-plus-50 year term no longer offers that protection due
to increased life expectancy and the tendency to have children later in life. On Jidy 1, 1995 the
European Union will adopt a uniform term of copyright equal to life of the author plus 70 years.
Because of the application of the rule of the shorter term, American authors will not baiefit from
the extended term unless we enact copyright term extension legislation.
The 20-year term extension is a modest proposal which will bring us in line with The European
Union. I strongly urge you to join your colleagues in support of H.R. 989.
244
[The prepared statement of Mr. Sondheim follows:]
Prepared Statement of Stephen Sondheim
To whom it may concern -
As a working songwriter/ former
president and current council member of the
Dramatists Guild suod member of AmSong, I am
committed to the protection of U.S.
copyrights, and so I regret that I am
unable to attend the July 13, 1995 Hearing
to voice my support for H.R. 989.
The current term of copyright -- a
fixed period of 75 years for pre- 197 8 works
euid life plus 50 years for works written on
or after Jeuiuary 1, 1978 -- no longer
protects American creators for a reasonable
period of time. All too often works have
been falling into the piiblic domain during
the author's lifetime (e.g., Irving Berlin)
or the lifetime of the author's immediate
successors, which is contrary to the intent
of our copyright laws. H.R. 989 reflects
the reality that life expectancy has
increased by at least 20 years.
The countries of Europe, and nearly
every other civilized country, inclement a
copyright term of life of the author plus
70 years. Our copyright law should do
245
- 2 -
everyt:liin9 possible to encourage Americem.
creativity. A modest 20 -year term extension
will further this purpose.
I applaud Chairman Moorhead for
introducing H.R. 989 suid urge Congress
to enact the Bill this year.
246
[The prepared statement of Mrs. Mancini follows:]
Prepared Statement of Mrs. Henry Mancini
I regret that I am unable to attend today's Hearing on H.R. 989.
I am Ginny Mancini. My husband was Henry Mancini, the songwriter. Since my husband's
work became widely known in the early 1950's, it has become part of the fabric of
American culture.
I commend Chairman Moorhead for introducing the Copyright Term Extension Act of 1995.
In light of the harmonization of copyright laws in the European Union, all European
works will soon be protected for the life of the author plus 70 years. Some of my
husband's best known works were written before 1978 and therefore are protected for a
flat term of only 75 years.
My husband always intended that his work would be a legacy for his children. Indeed,
our children are actively involved in the business aspects of my husband's catalogue and
insuring that his works continue to be available to the public. It is inconceivable that
such works would go into the public domain at a time when our children will most need
the support from the copyrights left to them by their father. It is particularly egregious
because foreign works written contemporaneously with my husband's works will continue
to be protected for 70 years beyond the author's death.
Many persuasive arguments support a 20 year extension of our copyright.
Copyright term extension is very much in the interests of the American economy as it
relates to maintaining a surplus balance of trade in an expanding world marketplace and
generating income tax revenues from American creators and copyright owners. Moreover,
strong ethical concerns support the enactment of term extension legislation as a matter of
justice for creators and their families.
I urge the members of Congress to support H.R. 989, and its companion Bill S. 483, and to
implement this legislation now.
247
[The prepared statement of Ms. Donaldson follows:]
Prepared Statement of Ellen Donaldson, Donaldson Publishing Co., Vice
President, AmSong
I welcome the opportunity to express my strong support for H.R 989, The Copyright Term
Extension Act of 1995, and to submit a statement for the record.
On behalf of my family I wish to thank Chairman Carlos Moorhead for introducing H R 989
I also thank the many co-sponsors of this legislation from the Subcommittee, Representatives
Becerra, Berman, Bono, Clement, Coble, Conyer, Gallegly, Gekas, Goodlatte, Nadler and Schroeder.
On March 10, 1994 I wrote a letter to the Acting Register of Copyrights Barbara Ringer,
expressing my deep concerns and strong support for copyright term extension, explaining in detail
the devastating consequences we and others face if Congress fails to enact such legislation. That
letter is attached hereto as part of my statement
We are just one of many music publishing families, writers and owners of pre- 1978
copyrights with a fixed term of copyright of 75 years from date of registration, who face the imminent
loss of our works (our livelihoods) to public domain while they still have a viable commercial life.
The extent of such works varies widely among copyright owners: from those who have enormous
song catalogues to those with catalogues of two or three income - producing songs who live quite
literally from check to check in order simply to pay the rent or put a child though school. There are
many writers and their families who do not share in publishing income at all and rely solely on the
248
writer's share of copyright income.
Despite the intent of the 1976 Copyright law and the basic theory of copyright duration - that
protection should exist for the life of the author and two succeeding generations- the fact is that the
life -plus 50 year term and the term of 75 years from date of registration for pre- 1978 works no
longer afford that protection, due to an increase in life expectancy Indeed, many authors' children
are bom late in the authors' lives, often well past their most productive creative years An extension
of copyright term by a modest 20 years would approximate this increase in longevity It would as
well approximate the sustained popular appeal of such authors' copyrights. The rapid growth in
communications media has substantially lengthened the commercial life of innumerable works. If we
fall behind in protecting our own works at home, our domestic short sightedness will lead to global
losses.
The European Union, along with most of the developed countries of the world, have adopted
a uniform term of copyright equal to life of the author plus 70 years or longer However, because
of the E.U.'s application of "the rule of the shorter term," American copyrights will not benefit from
this extended term unless Congress enacts copyright term extension legislation Without such
legislation, foreign works will have far longer security in the rapidly expanding global marketplace;
while American works will not be protected beyond the current (and inadequate) American term of
copyright. Our works, upon which our livelihoods are based, will be irrevocably lost to public
domain, virtually woridwide The question must be asked: Why should 20 extra years of protection
(and income) be given away to the worid, free, at the expense of America's writers and copyright
owners?
249
Copyright term extension is very much in America's economic interest. Along with our
country's broad, vitally important concerns in maintaining the trade surplus we currently enjoy in
the area of intellectual property, I respectfully urge this Congress to also consider the prospective
loss of American culture, the loss of foreign and domestic income, loss of livelihood, and the
concomitant loss of income tax revenues generated by its creators and copyright owners.
We desperately need harmonization of international copyright laws.
We need such legislation now.
It is a matter of economics. It is a matter of trade.
It is also a matter of justice.
250
Ellen Donaldson
Los Angeles. California 90004
March 10, 1994
Ms. Barbara Ringer
Acting Register of Copyrights
The Library of Congress
Washington, D.C. 20559
Dear Ms. Ringer:
This past December I was fortunate indeed to have
attended the "U.S. Copyright Office Speaks" seminars in
Los Angeles. I came away profoundly impressed. . .with the
speakers from the Copyright Office, the complexity and
analysis of the issues discussed, the clarity of the
presentations. . .and with a renewed appreciation that such
people make up one of the most important institutions in
our country. One which affects the very foundations of
our government generally. . .and which affects my family
and me very specifically.
At the seminars We were urged to respond to the
issues under consideration in the Copyright Office... and
how those issues would affect us. And so this letter.
My father was Walter Donaldson (b.l891, d.l947) who
wrote popular songs from 1915 to 1947... a gentle man of
the "Tin Pan Alley" years, the early years of American
popular music. (I have enclosed a song book for your
information. )
251
Ms. Barbara Ringer
March 10, 1994
Page 2
My letter concerns the possibility of an extension
of term of copyright, the effects of iituninent (in our
case) Public Domain, and the truly disastrous effect of
EU Copyright Law vs. U.S. Copyright Law. . .the conflicting
International Copyright Laws... on my family's business,
Donaldson Publishing Company, within three years time.
Our company consists solely of, and is built upon my
father's songs, most of which were brought into our firm
at the Termination Period.
If our company is to survive, an extension of term
is imperative. As time is so critically of the essence,
we urge you to initiate a moratorium until the issue can
be fully studied and recommendations set forth.
My concerns are complex. The issues about which I'm
writing are complex. For the sake of clarity, I've
chosen to focus on one song, but the circumstances are
strikingly similar for all of the music in our catalog.
In 1919 my father wrote, with lyricists Sam Lewis
and Joe Young, "How 'Ya Gonna Keep 'Em Down On The Farm
(After They've Seen Paree)", a song celebrating Armistice
and the end of World War I, with wildly irreverent,
peculiarly American humour... and a certain mad "take" on
life after so much tragedy. Lt. James Reese Europe and
252
Ms. Barbara Ringer
March 10, 1994
Page 3
his legendary syncopated brass band, The "Hellfighters
Regiment" (369th Infantry Division) introduced it... in
the Victory Parade, February, 1919, that welcomed
President Woodrow Wilson home from Paris and the Treaty
of Versailles preliminaries. . .to an uproarious, still
grieving, celebratory and exhausted populace in New York
City.
The song marked a moment in time. It became,
virtually overnight, a singular part of American culture
and history. It still is.
There followed many performances and many
recordings, which have been regularly re-mastered and re-
issued over the years. The song has become a musical,
journalistic, commercial and literary catch phrase, often
quoted, and (still!) often used in concerts, on
television and radio, in films and documentaries. . .often
to convey a sense of time and a sense of place to the
generations that followed. . .at other times used in a
whole other way to lend new meaning (for instance, a
print ad by a Japanese company doing business in
Paris. . . )
My point is: Still used, still there. After all
these years. Not lost somewhere in "cyberspace". It is
253
Ms. Barbara Ringer
March 10, 1994
Page 4
a small piece of the jigsaw puzzle of distinctly American
intellectual property that helps define our national
culture. It has been protected and promoted and always
available. It has been of benefit to my mother, my
sister and to me, as my father's direct heirs, because
the song is still earning a very substantial amount of
money for Donaldson Publishing Company . (we own the
Donaldson share, which is 1/3 of the copyright) as well
as for the heirs/publishers of the lyricists.
(See II - Business History - attached.)
I must add that we have granted synchronization
rights... on a gratis basis... for this song and others,
for use in historical documentaries aimed at libraries,
museums, schools and Public Television. This seems
appropriate to us; it is how we do business.
This song, musically and lyrically certainly, but
also because of its unique place in our cultural history,
represents the cornerstone of my father's career and, in
turn, of my family's publishing company, which is our
livelihood.
On December 31 of this year, "How 'Ya Gonna Keep 'Em
Down On The Farm" is due to go into Public Domain, as
have all of my father's songs from 1915-1918.
254
Ms. Barbara Ringer
March 10, 1994
Page 5
I protest.
The loss of this song, which I believe to be in
conflict with the intent of the 1976 Copyright Law, will
have a profound effect on our publishing company. It
will also mark the beginning of the losses of our most
valuable, income-producing copyrights: my father's music
of the 20's, which forms the very core of our business,
and will mark the beginning of the end of our publishing
company, and my family's livelihood. Next year: "My
Mammy"... in two years: "My Buddy" and "Carolina In The
Morning". , .and on and on and on. . •
I do not believe this was the intent of the 1976
Copyright Law, although it is the effect. Who could have
foreseen the ultimate beneficiaries of that most welcome
law or the healthy longevity of U.S. senior citizenry.
I believe the intent was that the term of copyright
should be enlarged to cover the lifetime of the author
and his immediate family. Yet here we are, my father's
immediate family: my mother, in her 80 's; my sister, 59;
and me, 55... all going strong, running a thriving
publishing business, and facing a daunting prospect: the
loss of our copyrights upon which our business is based.
Surely the issue of current life expectancy must be
255
Ms. Barbara Ringer
March 10, 1994
Page 6
reconsidered; yet another reason for a much needed
moratorium until a final decision is made on extension of
term.
The current "market" is very healthy indeed for the
old songs. I would venture a guess that it will continue
to be healthy for at least another 2 0 years. The songs,
because they are good, will continue to be used. Artists
will be paid for recording them, records will be sold,
vintage records will continue to be re-mastered, re-
issued and sold, record companies will be paid, the
stores selling the recordings will make money, an ad
agency will use a song to sell its clients' products, a
motion picture company will include it on a soundtrack to
help sell tickets. But the creator's share, meant,
according to the intent of the 1976 copyright law, for
his heirs, will be left out. Everyone will benefit from
the creator's work except his heirs.
Further, and most seriously: It appears that the EU
is moving toward extending its term of copyright to life
plus 70 years. Germany has already done so, and
apparently England will soon comply with the EU
Directive. It is my understanding that Europe will not
honor American copyrights with the same extension of term
2Si6
Ms. Barbara Ringer
March 10, 1994
Page 7
unless the U.S. extends its term of copyright to be in
accord; and that Europe will revert, for American
copyrights, to a term of life plus 50 years. If that
happens, it will be nothing short of catastrophic for us.
It means: that in three short years, in 1997.
virtually every single income-producing song in Donaldson
Publishing Company and every song my father wrote alone,
will go into Public Domain in every territory in the
world with the exception of the U.S. (Please see list -
I - attached.)
The reasons?
I. My father died in 1947; 1997 is the fiftieth
year after his death.
II. Most of his co-writers pre-deceased him.
III. He was the sole author of many, many songs.
It means: that our total income will be cut exactly
in half, at the same time that our most important
copyrights continue to go into Public Domain in the U.S.
The importance of Europe, the UK and Canada to our
business cannot be overstated.
It is ironic that just now, when the old songs are
257
Ms. Barbara Ringer
March 10, 1994
Page 8
in demand again throughout the world, the international
market for music is expanding at a breathtaking pace, and
scientific and technological wizards have made possible
an Information Superhighway and a world of new markets
for our music. It is ironic and heartbreaking that now,
as the EU moves to extend the term of copyright in
Europe, and now, in what promises to be a new "golden
age" for American music, both old and new, and now, when,
for the first time, it will be possible to earn a more
substantial income from our old, classic songs on a
worldwide basis. . .Now, our songs are rapidly going into
Public Domain in our own country; and, in three years,
because of conflicting International Copyright Laws,
virtually an entire market, indeed a world of markets
will be irrevocably lost to us forever.
The finality of this is particularly Draconian for
our family as we will no longer be able to claim
ownership of my father's songs.
An extension of the U.S. Term of Copyright and
international accord in extension of Term of Copyright,
would resolve the issue. Conflicting International
Copyright Laws have a devastating effect on some of us.
Indeed, eventually, all of us.
258
Ms. Barbara Ringer
March 10, 1994
Page 9
My greatest fear is that the intent of the 1976
Copyright Law has now become muddied with political
rhetoric and conflicting interests that. . .surely! . . .can
and must be resolved to everyone's benefit.
Ms. Ringer, I have chosen to personalize this
letter. I do not presume to speak for others in similar
situations. However, I do know, from numerous private
conversations with others, that they too will be
profoundly affected by the term of copyright issue, most
acutely those families with very small catalogs who are
struggling to pay bills, and who live, quite literally,
from check to check simply to pay the rent! We are
suffering from "the law of unintended consequences".
Dire consequences. Right now, that law seems to prevail,
causing grievous harm to us.
We are so grateful for the 1976 Copyright Law:
grateful for the foresight, wisdom and perseverance that
went into the writing of it. Believe me, it made a
positive impact. The honorable intent implemented by
that law is the basis of so much good for so many people!
Now, in the 90 's, given the unexpected longevity of
the immediate heirs to copyrights, the unexpected
longevity and continuing popularity of the songs on which
259
Ms. Barbara Ringer
March 10, 1994
Page 10
our businesses are based, the technological advances, and
the terrifying effects of EU copyright laws, and faced
with formidable challenges and opposition, we must
preserve that intent. Our copyrights must be protected
in foreign territories as well as in the United States.
We must have an extension of term of copyright if our
businesses are to survive. We must have a moratorium at
the very least.
There must be a way for the matter to be pursued to
a more just conclusion for everybody concerned.
Your wise counsel and advice would be most deeply
appreciated.
Thank you for your consideration and attention to
this urgent matter.
Sincerely yours,
Ellen Donaldson
Donaldson Publishing Company
Honorable James H. Billington,
The Librarian of Congress
Charlotte Douglas, U.S. Copyright Office
Mary B. Levering, U.S. Copyright Office
Marybeth Peters, U.S. Copyright Office
William Roberts, U.S. Copyright Office
Dorothy Schrader, U.S. Copyright Office
Eric Schwartz, U.S. Copyright Office
260
Ms. Barbara Ringer
March 10, 1994
Page 11
cc: (continued)
ASCAP: Marilyn Bergman, President
Jack Beeson
John Cacavas
Cy Coleman
Hal David
Morton Gould
Arthur Hamilton
Wayland Holyfield
Burton Lane
John Mandel
Stephen Paulus
Stephen Sondheim
Leon Brietler
Arnold Broido
Ronald Fried
Nick Furth
Donna Hilley
Dean Kaye
Leeds Levy
Keith Mardak
John McKellan
Jay Morgenstern
Irwin Robinson
Fred Konigsberg, Esq.
The Songwriters Guild of America:
George David Weiss, President
261
I
without an extension of U.S. Term of Copyright, in
accord with the EU extension of Term of Copyright, the
following songs, among others, will go into public domain
in virtually every territory of the world outside the
United States in three years, in 1997;
My Buddy
Carolina In The Morning
Beside a Babbling Brook
My Best Girl
Yes Sir! That's My Baby
That Certain Party
I Wonder Where My Baby Is Tonight
After I Say I'm Sorry
Don't Be Angry
Thinking Of You
Where 'd You Get Those Eyes
No More Worry in'
He's The Last Word
Sam, The Old Accordion Man
At Sundown
My Ohio Home
My Blue Heaven
Changes
Because My Baby Don't Mean Maybe Now
Out Of The Dawn
262
The entire score of the musical "Whoopee", including:
Makin' Whoopee!
Love Me Or Leave Me... among many other songs
Kansas City Kitty
Reaching For Someone
'Tain't No Sin
Romance
Little White Lies
My Baby Just Cares For Me
Sweet Jennie Lee
You're Driving Me Crazy
Hello Beautiful!
Without That Gal
That's What I Like About You
Ev'ning In Caroline
Nobody Loves No Baby Like My Baby Loves Me
My Mom
Dancing In The Moonlight
Hiawatha's Lullaby
You've Got Everything
Riptide
I've Had My Moments
Sleepy Head
Okay Toots!
An Earful of Music
263
When My Ship Comes In
Clouds
Why'd Ya' Make Me Fall In Love
Fit To Be Tied
etc., etc., etc... and every single song
for which my father wrote both music and lyrics.
(I have not listed the complete works.)
264
[The prepared statement of Mr, Schoenberg follows:]
Prepared Statement of E. Randol Schoenberg
I apologize for not being able to attend today's hearing on
H.R. 989, The Copyright Term Extension Act of 1995, but appreciate
that my views and the views of other heirs and copyright holders
will be represented by AMSONG, Inc., of which I am a member.
It is my understanding that the proposed bill will extend the
term of copyright to 70 years after the death of the author, or 95
years for pre-1976 works. The bill would bring the United States
in line with the intellectual property protections offered by the
European Community and other Berne Convention signatories.
Beyond the obvious symbolic significance of a measure which
would make the United States once again the world's leading
protector (and producer) of intellectual property, copyright
extension will greatly impact my family, as well as the families of
many other composers and authors.
My grandfather, the world-renowned Austrian-American composer,
Arnold Schoenberg, came to this country in 1933 after being forced
by the Nazis to abandon his position as the leading composition
teacher at the Academy of Arts in Berlin, Germany. He worked and
taught in Boston and New York, and from 1934 until his death in
1951, in Los Angeles, where my family still resides. After his
death, UCLA named its music building Schoenberg Hall in his honor,
and use built the Arnold Schoenberg Institute to house his
archives. He is generally considered to be the most important and
influential composer of the twentieth century, and is called by
some the "father of modern music."
We are informed that, notwithstanding its longer copyright
term, the European Community has decided not to recognize the
copyrights of American authors and composers beyond the term for
protection provided in the United States. If this "rule of the
shorter term" were applied to my grandfather's works, many of them
might lose their copyright protection in the year 2001.
As you might imagine, our family receives a large portion of
our royalty income from European performances. It would be a
tremendous loss for us if in 2001 the European Community stopped
protecting my grandfather's landmark American works, such as the
Violin Concerto, the Piano Concerto, and "A Survivor from Warsaw"
(which was performed at the opening of the Holocaust Museum in
Washington, D.C.).
The extension of the copyright term will assist the families
who are the intended beneficiaries of the copyright term. Despite
his importance in the field of music, my grandfather died in 1951
with few assets aside from his artistic works. (He gave his
letters to the Library of Congress, forming one of the most
■ DOfUMENT*: 1^^112551 1. V I ;DAir..07/(lft/<(.>/nMl; 12 36 =
265
valuable collections in the Music Division.) He left behind my
grandmother and three young children (age 10, 14 and 19) who
survived primarily on copyright royalties. Today, our family
continues to spend a great deal of time and energy promoting my
grandfather's works and protecting his cultural legacy which is a
treasured asset of the City of Los Angeles.
My generation, the grandchildren, span from age 17 to 35. It
would be a great loss if our family were not now able to reap the
benefits of my grandfather's life's work, just as those benefits
are coming to fruition. In serious music, even 70 years after
death is sometimes insufficient. J. S. Bach's music had to wait
almost 100 years after the composer's death before Felix
Mendelssohn "discovered" it and proclaimed its greatness to the
world.
My grandfather wrote an essay in 1949 in which he challenged
the philosophical underpinnings of the copyright term and
questioned:
why an author should be deprived of his
property only for the advantage of shameless
pirates, while every other property could be
inherited by the most distant relatives for
centuries.
Indeed, there does not seem to be any sound reason for this
disparity in the treatment of intellectual property from other
forms of property. As the nations of the world lengthen the term
of copyright, intellectual property is beginning to be placed on an
equal playing field with other forms of property. This is as it
should be. For the record, I have attached a copy of my
grandfather's essay.
For my grandfather, as with most serious composers today, the
prospect of performances and recognition after his death was his
only hope of compensation and support for his young family. Had he
not had faith in the ability of his copyrights to support his
family, he would not have been able to devote- the time that his
groundbreaking work required. Certainly, The Copyright Term
Extension Act of 1995 will be a further inspiration to those
artists creating today, whose works are also not likely to receive
their due during their lifetimes.
Thank you for your support of this important measure.
266
COPYRIGHT
'949
The copyright law wa» oonsidered up to now m forbidding pinlca to ttoil sn
luthor's property before a maximum of fifty-»ix yeai« tflcr its rc^tntion. After
Ibis lime every pirate could uae it fiedy, moUng great piolita without letting the
real owner 'participate' in the profitr of hit property,
The moral which had created a'law of this kind seemed so low and unin*
tciligibte that one always wondered in whose interest it was created, and why an
lutiwr should be deprived of his property cmly for the advantage of shamelesa
pirates, while every other property could be inherited by the most dtatant
lelfttivcs for centurica. Nobody can prove that the lo per ccikt which the author
—the creator, the real o>wncr of this property — would receive after the fifty -six
years would have caused any damage to the public. Because* if a work is still
sellable after fifty-six yeara^ die editions which a publisher prints can be so large
that the cost of products decreases to 25 per cent ol the cost of the amsller
editions. Accordioglyi the prices wittt the expiration of the 'proteclioa period*
go down 60 per cent aiul nwre (as» for instance* the cases of Wagner and Brahms
indicste). Accordingly, even at 60 per cent plus 10 per cent for the suthor, the
public would buy the work for much less than durli^ the ^proteotiou period*.
All this seems to be perfectly sensdeas and one can only think that it is
maliciousness opunst the heirs of an author — while other hcira remaia un-
molcatcdl
Now I have discovered the true solution to thla problem:
At the time when thn kw was msde there did not yet exisi the so-called
'small rights'; there was not yet the radio, the movies, recordings, there was no
payment for performanoe. At this time most authors sold their vrorks to s pub-
lisher entirely, with all rights included. TWt participation of the suthors in
royalties of sates, of rcntab, of pcifomunoes, rccordingSj radio, and movie
transcriptions was not foreseen by the suthor nor by the publisher. I conclude
that the law was not made to deprive the suthor of his property.
It was msde in analogy to the pstent taws, admitting exduaive rights only
4W
267
iOCtAL AND POLITICAL MATTBRB
for a limited time. A publiilter, a manufactuKr was not considered an the only
one who should pfofit Irom other people's creation. And especially in respect to
the patent laws there are many interests which require protection. Never could
it have become possiMe that everybody could trarel by railroad or steamship or
posacas an automobile, if one manufacturer had the production monopolized.
One should also here regret the poor inventor who seems to be damaged, fiul
generally an inventor is forced to sell his patent to a powerful man, because he is
unable to produce himaelf. If there were such a thing as 'Human Rights', he
should be protected — though the risk of marketing a new invention is a great
one, and seldom is an invention from the very beginning perfect enough to
become a succeas. Think of all the improvements which were required to make
an automobile as perfect as it must be.
Such b not the case in th^ realm of copj^ght. A pubtisherV risk is not ts
hrgt and he tuuaDy gambles on several numbers, ont of which might cover all
possible losses. The publisher is seldom forced to mdce improvements. Generally
the works are finished and ready to be sold. Still, if one had the monopoly, he
would not reduce the prices, as Schott's and 8imrock's attitude proved, and
therefore hia rights must be limited. He is still thereafter in the position to com-
pete successfully with the pirates, especially if he improves his editions.
It seems to me that this was the intention of the lawmakers. It is regrettable
that they had no imagination to foresee at least some of the valuea which nught
be added to a work, and that the)r worded this law so poorly that the wrong
interpretation was pos«ble — that the law wanted to deprive the creator and
serve the pirates.
How it was possible to eittcnd this inisintcrpretation to toyahics, perfonn-
anoe fees, recording fees, etc, ia entirely unintcll^ble. Admitting that the law*
tnakera in whoae hands our destiny was delivered were unthinking and possessed
no imagination, one is still surprised that nobody tried to find out for which
purposes such a kw should serve, tn whose interest was it^ Is the interest of
those t)eople to whom it b advantageous worthy of protection? Or b this law
based on the same consideration as the law which protecta the criminal instead
of the victim?
49«
268
[The prepared statement of Ms. Durham follows:]
Prepared Statement of Marsha Durham
My name is Marsha Durham I am a daughter of Eddie Durham, an African/Indian American
composer, writer, arranger, trombonist, guitarist and innovator of the electric guitar and of South
Western Swing. When my father died in 1987 he left his estate to 4 children ranging in age from 18
to 50 At that time, my father had 3 grandchildren ranging in age from 1 to 18
I am a divorced parent of two young daughters. I receive no child support and rely on my salary as
a paralegal and whatever income I derive from my father's estate to cover our household and
education expenses.
My youngest sibling, T. Edward, is a very talented musician in his own right, and now the father of
two children. The small income he derives from my father's copyrights have allowed him to pursue
the difBcult livelihood of the new songwriter.
My sister, Lesa, who is at the beginning of her professional life and my brother, Eddie Jr , who is in
retirement, similarly rely on their share of the small royalty income to care for themselves and their
families.
I should stress that the income we derive from my father's work is indeed small - a great deal smaller
than would seem fair, given his extraordinary variation of musical talents and a great deal smaller
than the legacy our father hoped to leave for his children and grandchildren.
My father, like many jazz composers in the first half of this century, was often at the mercy of
unscrupulous advisers. His lack of business sophistication caused him to lose many of the fruits of
his creative labor and greatly diminished the royalties he and our family should have received over
the past 65 years.
For example, my father was the arranger of the world renown Glenn Miller classic "IN THE
MOOD" However, he received nothing for his work beyond a very small one-time fee. The
monetary loss from this one historical song is devastating to my father's legacy We similarly receive
no compensation for " 1 O'CLOCK JUMP" which my father wrote for Count Basic
The copyrights my father did manage to retain include "TOPSY", "GOOD MORNING BLUES," "I
DON'T WANNA SET THE WORLD ON FIRE," "MOTENS SWING" and "LUNCEFORD'S
SPECIAL " These songs were assigned to various publishers, and very little income has accrued to
my father's estate. However, after many years of arduous research I am finally in the process of
recapturing the rights to these songs for the final 1 9 years of copyright protection available under the
1976 Copyright Act. I am hopeful that through careful management of my father's catalogue my
brothers, sister and I will be able to recoup our legal expenses and to derive some revenues from our
269
fether's songs. The irony is, of course, that absent an extension of the term of copyright we will have
only a few short years of income from these songs which should rightfully have been a source of
income for my father, his children and his grandchildren for many years.
On behalf of myself, my brothers Eddie Durham Jr. and T. Edward Durham and my sister
Lesa Durham I wish to thank Chairman Moorhead for introducing H.R. 989 and to urge Congress
to enact the Bill this year.
270
[The prepared statement of Ms. Miller follows:]
Prepared Statement of Betty Kern Miller
Dear Chairman Moorhead:
I am the daughter and only child of the late Jerome Kern,
and I have been following with great interest your proposal to
extend the period of copyright protection in this country. I am
grateful to you for having introduced legislation that would
extend copyright protection in this country for my father's work
and for all other intellectual property for an additional twenty
years, and I urge you to continue to support that legislation and
to attempt to have it enacted into law as soon as possible.
My health has not permitted me to travel to New York to see
the current successful revival of SHOW BOAT for which my father
wrote the music, and it does not permit me to come to Washington
for the hearing that is scheduled for July 13th. I wanted you to
understand however, that my absence does not mean that I am not
fully in support of the proposed extension of copyright and
grateful to you for what you are doing in support of American
copyrights .
Writing with such wonderful lyricists as Oscar Hammerstein
II, P.G. Wodehouse, Otto Harbach, Dorothy Fields, Johnny Mercer
and Ira Gershwin to name but a few, my father wrote many of our
best known and loved songs and musical scores . In addition to
the score of SHOW BOAT, among the more than 1,000 songs he wrote
are "Smoke Gets In Your Eyes", "All The Things You Are", "A Fine
Romance", "The Way Your Look Tonight", "The Last Time I Saw
Paris", "I'm Old Fashioned" and "Long Ago and Far Away". Under
the current law his earlier works have been falling into the
public domain each year for some time. For example, his songs
"How'd You Like to Spoon With Me", "They Didn't Believe Me" and
"Till The Clouds Roll By" are already in the public domain, and
"Look For The Silver Lining" will fall into the public domain on
January 1, 1996, if copyright extension legislation is not passed
this year.
271
Honorable Carlos Moorhead
July 7, 1995
Page 2
I urge you to extend copyright in this country as soon as
possible, not only because of the economic considerations
involved but also because of the lack of control that occurs when
copyrights are permitted to fall into the public domain during
the lives of the first generations of authors' heirs. The
musical "SHOW BOAT" is still playing to hundreds of thousands of
people throughout this country and the world, and yet it will
soon fall into the public domain if copyright is not extended in
this country, thereby ending our ability to control the quality
of its many productions. Since my father died fifty years ago
this year, his works will also begin to fall into the public
domain in foreign countries unless we extend copyright so that
foreign countries who give protection for seventy years after
death to their own authors will grant that sairie protection to
United States authors .
I thank you again for the support that you have shown not
only for the works of my father but also for the works of all of
those whose work during this century has contributed to our
American musical and literary heritage.
r\ /»
272
[The prepared statement of Ms. Barrett follows:]
Prepared Statement of Mary Ellin Barrett, Daughter of Irving Berlin
First I want to thank Representative Carlos Moorhead for introducing H.R. 989, the Copyright Term
Extension Act of 1995 AJl children of authors, not to mention authors themselves, should be
enormously grateful to him.
Obviously I, and those I presume to speak for, have a personal stake here and that basically is what
I'm going to talk about ... the question of what is fair and right for the creative people of this country,
and their heirs
Because of my father's long life and young beginnings, his songs - most notably "Alexander's
Ragtime Band" - began falling into the public domain more than a decade ago, before he himself died.
.At that time his daughters were in their forties and fifties and his grandchildren (all but one) in their
teens and twenties. Every year now more of those songs he hoped to leave as a legacy to those
children and grandchildren become public property The past ten years have seen the loss of, among
others, "When I Lost You". "When The Midnight Choo Choo Leaves for Alabam"'. "'Play A Simple
Melody". "I Love A Piano ', "A Pretty Girl is Like a Melody", "You'd Be Surprised", all still money
makers. There is also "Oh How I Hate to Get Up In the Morning ' which, like all my father's wanime
army show songs belongs to the God Bless America Fund. (But that is a whole other story, the rich
royalties he has given^way to his country) Next year "All By Myself, "Everybody Step", "Say It
With Music" will go. and so it will continue year by year
Yet the basic principal of copyright duration is that protection should exist for the life of the author
and two succeeding generations My father began young but had his children relatively late -
something that is happening more and more today 75 years from registration of pre- 1978 works -
our situation - doesn't come close to offering that traditional protection. Nor, given today's life
expectancy, does "'life plus 50 years" give proper coverage.
So authors and their families will indeed suffer if works fall into the public domain while still
commercially viable Someone - not the public - will be making money out of another person's
property And there are many families much more at risk than the heirs of Irving Berlin - those
whose catalo2ues are more concentrated in time, with a smaller number of huae continuinsj hits
273
And with the new uniform term of copyright adopted by the European Union - "life plus 70" - there
will be further attrition. Because of the "rule of the shorter term", American authors will not benefit
from the 20 year extension abroad unless we enact similar legislation here. (In the case of pre- 1 978
works, it must become 95 years from registration).
This, of course, brings up the much broader balance of trade issue. Intellectual property, I'm told,
is America's second largest export. It won't only be individual composers, lyricists, film makers,
playwrights, writer of fiction and fact, who will suffer but American trade as a whole. That all
important question is one for trade experts to address. I am not an economist.
My question, as the child of a creator, as a person who values the ans (and as a working writer), is
simply this: why is my country, so protective of other kinds of property, so reluctant to recognize the
rights of the creative variety''
Non-creative, non-intellectual, property can be handed down indefinitely, as long as each generation
pays its death taxes. Land rich in natural resources, businesses based on manufacturing, clothing,
cars, liquor, fortunes in real estate, etc etc etc, can be supporting a fourth, fifth, sixth generation.
Why shouldn't businesses based on creativity have a similar right ~ or at least be guaranteed
proteaion for the life of the author and two succeeding generations - which is what this bill, if passed,
conceivaoly might do
This as a question that troubles me greatly, beyond my own immediate interests, and those of every
heir and living author who shares my gratitude for what you. Representative Moorhead, have
proposed.
274
Mr. MOORHEAD. Well, thank you very much.
Opponents of copyright term extension point out that there are
a number of benefits to the public domain that will be lost or post-
poned as a result of this legislation. How do you respond? Is there
any public benefit in extending the copyright?
Mr. Jones. I'm sorry, I didn't get the question.
Mr. MooRHEAD. Opponents say that term extension will deprive
the general public of certain of their benefits or at least postpone
them, as a result of this legislation. How do you respond and is
there any public benefit in extending the copyright?
Mr. Jones. Well, the public benefit is cop3rrighted works usually
are more available. The cost to the public stays exactly the same,
and, also, it allows the estates to be involved in receiving the bene-
fits of what the creators have left as their legacy, but the public
I think will get more efficient programming possibilities and have
access to people that are really concerned with all of the
accouterments that it takes to make a piece of music become ex-
posed and to grow.
To me, copyright is in many ways like creative real estate, and
it depends on — depending on the song — ^you were speaking about
economics earlier. When we did the album "Thriller," the song, the
value of the songs on that album to the various songwriters — there
were nine songs in that. The songs were worth about $1.6 million
each in terms of just each individual writer. That's just with one
album.
Mr. MooRHEAD. One of the things that people have been con-
cerned about was that our works in Europe are not protected for
the same length of time as we would protect the works of European
authors in the United States. Is this a substantial economic switch
as far as we're concerned? As far as the balance of trade, does it
give the Europeans and other nations a big advantage of us
Mr. Jones. A tremendous advantage. I'd cite examples. When
records in America like "Thus Spracht Zarathustra," Richard
Strauss was adapted because my teacher always told me that the
melody is what lingers on, and that's always the power of a song.
Even though they changed the rh3d:hms throughout the ages, when
"Spracht Zarathustra" was released as a single in the United
States, it was public domain. And when it was released in Europe,
they still had to pay the estate of the Strauss estate for that par-
ticular piece.
They have a tremendous edge on us. I lived in Europe for a
while. I was a member of SACEM. It's a sister of ASCAP, and BM
is the sister agency of BMI. Michel LeGrande is one of my closest
friends, and I'm embarrassed to have a conversation with him
about our various setups.
Mr. MOORHEAD. A while ago, the discussion centered on what the
benefit would be for us in taxes, but there is also a benefit, is there
not — as we bring more money into the United States, it percolates
down in jobs and in investment, and so forth. So whether it gets
into taxes or not, we have a real benefit in money coming into our
country instead of going out, as it does with the purchase of so
many foreign cars and the foreign equipment, and so forth. We
need something to balance it.
275
Do you think extending the copyright, as we're trying to do here,
will make a difference there?
Mr. Jones. Yes, I do. I think it could be a strong factor in a
young person determining whether they want to be a composer or
a songwriter, very much so.
Mr. MOORHEAD. Well, I have no further questions, but I'm sure
that our ranking minority member of our committee, Pat Schroeder
of Colorado, will.
Mr. Jones. I just wanted to say one more thing. Probably in 3
or 4 years all of the rules will have to be rewritten anyway because
we are, as we step out of the industrial revolution century into the
century of information and computers, it will be unbelievable.
There was a question asked before about the Internet. It will be-
come one global unit, and I can feel that already, the way we do
interviews now and the way we would be doing them in 2000, when
you do satellite interviews. Twenty years ago, when America had
totally dominated the record field, we would have our records re-
leased here and become hits, and 2 years later maybe they would
be released in the European countries. Today they may come out
in Europe before they come out in America. And it's become such
a global and unified situation that it seems to me like it makes a
lot of sense to have — ^at least be equal with our European counter-
parts.
Mrs. Schroeder. Thank you, Mr. Chairman, and thank you very
much for being here this morning.
Basically, what I thought I heard you sa5dng is public benefit
doesn't seem to work because, even when there is no copyright, the
price doesn't go down?
Mr. Jones. That's right.
Mrs. Schroeder. So that somebody is pocketing it?
Mr. Jones. The wrong people are making the money.
Mrs. Schroeder. The question is, who pockets it; right?
Mr. Jones. Right, with the manufacturers.
Mrs. Schroeder. And I think most of the consumers don't un-
derstand any of this, so that they wouldn't know to look for a
cheaper product because it's now out from under copyright.
Mr. Jones. Right. That's the example with the Tolstoy book.
Mrs. Schroeder. And that is really one of the issues that con-
cerns you. Either we've got to get the consumer smarter and get
the price down or you may as well keep the person who created it,
give them the property right and let them get it. Somebody's being
unjustly enriched.
Mr. Jones. You're absolutely right, and I think that the main
point is to inspire our young people to want to be in this field. It
would be very easy to say it's not worth the trouble. It takes a long
time to develop a musical background, and with some of my kids
I try to discourage them from being in music because it's a very
touch-and-go type of a profession and the first 30 years are the
hardest. [Laughter.!
And if you do happen to get lucky later on — ^but it's a very tough
profession, and I think every type of encouragement should be
right down front and there for them.
Mrs. Schroeder. So your last 19 years have been great; right?
[Laughter.]
276
But, basically, what the Constitution says about public benefit,
because the idea being, then, after so many years then the whole
public gets to share it — ^you're saying that that's not true; that
what they had in mind when they wrote that in the Constitution
isn't what's happening in today's real world. So I think that that's
a very interesting point.
I think the other point is we in this country tend to have cor-
nered the creative market, not totally cornered it, but we have a
phenomenal amount of creativity generating out of here. And if
after a smaller number of years than in other countries people can
pick that up freely in their country and use it, that that's also
harming this country, where the creators are more apt to live. I
don't know how you break that out, but I think I've seen numbers
showing we've got more creative little minds living here on this
continent than we have in other places.
Mr. Jones. We do, and I think it's very ironic that, with the 400-
or 500-year history of western music, out of all the possibilities —
bagpipes, kabuki, string quartets, et cetera — that the youth of the
entire planet have made the decision to adopt our music as their
esperanto, all over the world. And it always fascinates me to go to
these places, even Tahiti, and hear the same records that you hear
in New York City. It's one of the most powerful exports that we
have.
Mrs. SCHROEDER. Well, just remember what Tip O'Neill said,
though, that the Irish gave the bagpipes to the Scotch as a joke
and they never figured it out. They thought it was real. [Laughter.]
But, no, we thank you very, very much for being here this morn-
ing
Mr. Jones. Thank you.
Mrs. SCHROEDER [continuing]. And appreciate your insight.
Mr. MOORHEAD. The gentleman from Virginia.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. Jones, we're honored to have you here with us today.
I want to comment on Martin's comment about why not forever.
Martin neglected to state that he's an accomplished musician and
pianist in his own right, and I'm sure he's happy to support this
legislation so long as your sheet music will remain competitively
priced so he can get it. [Laughter.]
In asking that very question, I support this legislation. I think
the extension is important to protect you and others who are cre-
ators of wonderful works, and we want to encourage that creation
by allowing you get to just recompense for your work, and I think
that that ought to carry on for your children and your grand-
children as well.
I think the reason why not forever is that at some point in
time — family trees tend to go like this [indicating], and at some
point in time the number of ancestors of a great — I don't know how
many Tolstoy has out there today, but if they all had to get to-
gether and agree on how to handle the rights to his works, it might
have at some point in time a stifling effect on the ability to pro-
mote great works of past centuries, rather than a positive effect,
which I think it does for the immediate ancestors.
I wonder if you have any comments on that thought.
277
Mr. Jones. Well, I can't think of a situation where it hasn't been
worked out when this type of legacy
Mr. GrOODLATTE. But we have a limit. If you go back 10 genera-
tions, you might have 200 or more heirs who would then all be po-
tentially, depending on how wills were written, and so on, have the
right to make a decision.
Let me give you an example outside of this area. My wife's par-
ents are both from Ireland and her father's father owns a beautiful
little house that overlooks — it's in Galway and it overlooks Galway
Bay and it's just absolutely fabulous. It sits there abandoned. It's
a small two-room house. The view is worth a million dollars, but
her grandfather had 10 children and they've had several children
each, and we're not all that far down the line, but to figure out who
owns that property and for somebody to take control of it and do
something with it involves a huge legal task. So at some point in
time it seems to me that having an indefinite and unlimited copy-
right right that's passed on forever creates these kind of entangle-
ments that could stifle the use of something beautiful rather than
promote it.
Mr. Jones. You're right, but it's a still a great concept. [Laugh-
ter.]
Mr. GrOODLATTE. Yes, well, 70 years won't do it. I support the leg-
islation, but I would not support
Mr. Jones. If we can start with 70, add 20, it would be a good
start.
Mr. GOODLATTE. We'll do it for 70 years plus your life, and you
won't have to worry about it. [Laughter.]
Thank you very much, Mr. Chairman.
Mr. Jones. Thank you.
Mr. MOORHEAD. The gentleman from Michigan.
Mr. CONYERS. Thank you very much.
Quincy Jones, it's a pleasure to have you here and to listen to
you, and I keep thinking about all the impact you've had on our
music and our culture.
And what I'm thinking about is how we can build a system that
encourages creativity, the creativity that you talk about and that
has been referred to, to be so profuse in this country, because we're
now in a time of cutbacks. Our cultural system is now being told
that we don't need the National Endowment for the Arts; we don't
need as much education programs. I hate to tell you this. Some
have actually suggested abolishing the Department of Education,
and education-wise we don't come up too high in industrialized
countries of the world. We have a 25-percent rate of functional illit-
eracy among adults in this country. Millions of youngsters in this
century could have added much to our country, had they had an
opportunity to go to school and to go as far as their talents would
carry them.
And so in a way, we need more cultural spokespersons to help
us understand that you can't continue this stream of talent by re-
ducing the Federal relationship to this. We have to have — particu-
larly in my favorite arena, the jazz musicians have come through
tremendous obstacles, the few that have made it. Many, as you
know, go unnamed, unnoticed. There was no way they could take
advantage of any royalties; that was out of the question.
278
And so I know that your presence here helps in this direction as
well as in support of this important bill, 989.
Mr. Jones. Thank you. I think we're so — it goes back to the ex-
pression: how can I miss you if you never leave? And I think we
are so rich in culture and we do not realize — we take it for granted,
and we don't realize how much the culture plays a part in our life.
I would like, just out of curiosity, to see what would happen if
America had to experience 2 weeks with no music, with no film, no
television, no books. We'll say books. Books will always be around,
but without a sound. Ever3d;hing from the dentist's office to the ele-
vators, to the radios, to television, to music, to records — there's a
total absence of sound. I don't think we could stand it because it
is the food for our soul, especially this country. That's why the
world has adopted this music on such a large level, and it's one of
the most important things. It saved millions and millions of kids
from the urban situation, millions, and given them a way to see the
light.
Mr. CONYERS. And we want to try to make it better than it has
been in the past. I mean, if we can't do that, then we're not living
up to our mandate, and I think you have been doing all you can
in that area to bring forward other young talents of all disciplines.
And, you know, you mentioned this next century coming up. You
know, with digital, the telecommunications, the recombinations of
our new technology, it is going to make a whole different kind of
playing field for all of the players
Mr. Jones. I agree.
Mr. CONYERS [continuing]. And you're right, this is just
Mr. Jones. I totally agree.
Mr. CONYERS. Unless we really begin to look at this more deeply
than we ever have before, we'll end up sliding backwards instead
of moving forward.
Mr. Jones. Absolutely. And if — we've been very involved, very,
very involved in the conversion technology, just out of curiosity and
because of necessity really. This is a place where — this is a situa-
tion where not — reading and writing is one thing, but a young per-
son that enters into the 21st century who is not equipped to deal
with this technology will be doomed before they start. There's no
question about it.
And I've been working with Allen Kay, who's one of the inventors
of Mac I and Mac II. He's the Apple fellow. We've already proposed
them coming up with another one called Mac Daddy III to get the
kids interested in it, so they won't think it's authoritarianism or in-
stitutionalized.
It's very important that everybody come to this party because of
what's happening online, and this technology will probably be one
of the biggest changes in civilization since the industrial revolution.
I'd bet my life on it.
Mr. CONYERS. This subcommittee was in Hollywood recently
holding hearings on this and related measures, and I couldn't help
but notice — we visited a couple of studios, and I was very pleased
to see that in some of our meetings there were African-American
vice presidents of film companies; there was a general counsel. We
went through one of the lots on a studio, and there was an African-
American carpenter. And, you know, it's only a few years ago that
279
I could remember when trying to integrate the film industry and
the movie industry, television, and the music industry was an
awful experience. I mean, the battles — and I don't mean to suggest
that it's over, but there has been movement in this direction. And
I think that it's very important for the country itself, and also for
the creative experience that you've referred to so much here.
Mr. Jones. I agree with you, and I appreciate the compassion
and understanding and attention that's been given this. It will
drive the next century; there's no doubt about it.
Mr. CONYERS. Well, I'm happy that you've come here in this re-
gard, and I hope that we will continue to hear some of the wonder-
ful contributions that you've made. You've now crossed over into
television and other kinds of activity, but I suppose the creative
urge never leaves. I certainly hope it doesn't in your case.
Mr. Jones. Thank you.
I'll close with this. I keep remembering that the entire entertain-
ment business is about six things: the song, the song, the song, and
the story, the story, the story. That's all it's about, the whole thing.
[Laughter.]
Without those two things, there's nothing to talk about. That's
what hires millions of people. You don't call them, directors or ac-
tors or musicians or anything, until you have a song or a story.
And I think I would appreciate all the support you can give me,
NEA, and anything that fosters the arts in America, because it is
part of our heartbeat; it's part of our soul, a big part of our soul.
And we dominate it; we really do. We do it better than anybody in
the world, all of America.
Mr. CONYERS. Yes, thank you very much.
Mr. Jones. Thank you.
Mr. Gekas [presiding]. Thank you, Mr. Jones.
Your "Eyes of Love" I think is one of the most exquisite composi-
tions of our time. You continue now to receive royalties from that,
do you not?
Mr. Jones. Yes.
Mr. Gekas. And you will through the life of the cop5n'ight that
is now accorded you as the composer of that number, and the pric-
ing of whatever use is made of "Eyes of Love" takes into account
the royalties to be paid to you, does it not? The marketplace, in
producing, wherever it does, a reissuing or reproduction of "Eyes of
Love," has to price it in such a way that they know that part of
it has to go to you, the composer; isn't that right?
Mr. Jones. That's right.
Mr. Gekas. So the marketplace still works within the confines of
the copyright world. The reason I'm asking that is, Beethoven, the
example that you gave, which is in the public domain, itself is gov-
erned by the marketplace. It appears from what you tell us that
the demand is still there for Beethoven; therefore, the pricing can
be even higher than for the "Eyes of Love," for example; is that cor-
rect?
Mr. Jones. That's right. That's right.
Mr. Gekas. Well, you don't have any quarrel with that, do you?
You don't have any quarrel with the fact that the marketplace still
gathers in a large demand for Beethoven or for public domain
280
Mr. Jones. No, I don't have any quarrel with that at all. I just —
when we reduce the time down to — we're speaking in increments
of 70 and 80 years, is a big difference from the 500 years. Bee-
thoven was, without a doubt, one of the geniuses of our time, of
that time. And I have the same feeling that in 100 years from now
in America — we probably are the least informed about our own
music — I promise you that Louis Armstrong and Count Basie and
Duke Ellington and Charlie Parker will be recognized as the same
type of genius, because jazz is the classical music of the world.
Mr. Gekas. The only other question I'd have — I'd like to enlist
your aid. I wrote a piece a long time ago for the oboe. [Laughter.]
Mr. Jones. You did?
Mr. Gekas. I don't know if the marketplace is going to be able
to accept this. So I'll need your help on this. [Laughter.]
Thanks very much.
Mr. Jones. Thank you.
Mr. Gekas. This hearing is recessed for 10 minutes.
[Recess.]
Mr. MOORHEAD [presiding]. Our first witness in the third panel
will be John Belton, who is a professor of English and film at Rut-
gers University. Professor Belton holds a bachelor's degree from
Columbia University in Greek and Latin, and both a masters and
doctorate from Harvard University in classical philosophy. He's the
former Chair of the Task Force on Public Access and Education
Use of Motion Pictures of Society for Cinema Studies and a mem-
ber of the Film Preservation Hearings Board of the National Film
Preservation Board, the Library of Congress. He's written exten-
sively in the area of cinema studies and is here today representing
the Society for Cinema Studies.
Welcome, Professor Belton.
Mr. Belton. Thank you.
Mr. Moorhead. Our second witness on the third panel will be
Dennis S. Karjala, professor of law at Arizona State University Col-
lege of Law. Professor Karjala holds a bachelor's degree from
Princeton University in electrical engineering and physics, a law
degree from the University of California at Berkeley, and a doctor-
ate from the University of Illinois. He teaches and researches copy-
right law. He was a Fulbright Senior Research Scholar at the Max
Planck Institute in Munich, Germany, studying the implementation
of the European Union's directive on the copyright protection of
computer software.
Welcome, Professor Karjala. Am I pronouncing that right?
Mr. Karjala. Karjala. Thank you.
Mr. Moorhead. Our third witness on the third panel is William
S. Patry, associate professor of law at the Benjamin N. Cardozo
School of Law of Yeshiva University. Mr. Patry served as counsel
to this subcommittee and as policy planning advisor to the Register
of Copyrights. He is editor-in-chief of the Journal of the Copyright
Society of the USA and has written several treatises and law re-
view articles on copyright law.
Welcome, Professor Patry.
The fourth witness on the third panel is Jerome H. Reichman,
who is a professor of law at Vanderbilt University where he teach-
es intellectual property law. Professor Reichman holds a bachelor's
281
degree from the University of Chicago and a law degree from Yale
University. He currently serves as chairman of the Intellectual
Property Section of the American Association of Law Schools and
is a member of the Copyright Society of the USA. He has served
as an advisor to the Office of Technology Assessment and helped
to prepare that body's 1992 report to Congress on computer soft-
ware and intellectual property.
Welcome, Professor Reichman.
We have written statements from our four witnesses, which I ask
unanimous consent to be a part of the record. I ask that you all
summarize your statements in 10 minutes or less. All being law-
yers, that's hard to do, I know. [Laughter.]
I ask that the subcommittee hold their questions for all four wit-
nesses until they've completed their oral presentations, and we'll
begin with the testimony from Professor Belton.
STATEMENT OF JOHN BELTON, PROFESSOR, RUTGERS UNI-
VERSITY, ON BEHALF OF THE SOCIETY FOR CINEMA STUD-
IES
Mr. Belton. Thank you, Chairman Moorhead.
I guess I should say I'm not a lawyer, so maybe I can be briefer
than my colleagues. I represent an organization of academics, the
Society for Cinema Studies, which teaches film and television in
colleges and universities around this country.
First, I might begin with prefacing my testimony by suggesting
that there is a very simple answer to the question of the day about
perpetual copyright, and it can be done without increasing term
limit. All you have to do is live forever.
One of the points that I think that whole idea raises is the sort
of conformity with other standards and terms, and so forth. And if
you just think for a minute about the arbitrary terms that come
with life-plus-50 or life-plus-70, you realize that cop5n-ight terms
can be very, very short. Think of Buddy Holly, for example, as op-
posed to Irving Berlin, a man who died in his twenties, a man
who's tried to live forever. And I think these need to be weighed
when we talk about conformity in cop3nright law, that there really
is no conformity of term in copjrright law. But I'm speaking as a
lawyer, so I should stop that.
What I'm going to talk about specifically is the proposed legisla-
tion as it relates to works-for-hire; in particular, motion picture
and television works, and I have very little to say about protection
for authors. The proposed legislation actually fails to distinguish
between works made for hire and works protected by authors. It
awards a 20-year extension to both works produced by authors and
works made for hire. One of the reasons I think that the 20-year
extension figure came up was that it would provide authors and
their immediate heirs for two generations with extended copyright
protection. Works-for-hire are made by corporations. Corporations
have a life expectancy that is not determined by human longevity.
There is, therefore, no need to increase the copyright term for
works made for hire using the logic that's being used for works pro-
duced by flesh-and-blood authors.
One of the — I guess the other issue that I think needs to be ad-
dressed when I'm talking about conformity is that appeals are
282
made to the European Community and the way in which the Euro-
pean Community has structured its provisions of Berne in regard
to this new copyright procedure. However, within the European
Community works-for-hire, if they exist at all — I've done some re-
search on this — suggest to me that cinematic works in England and
France, and so forth, are protected for 50 years. The United States,
actually with its current legislation, protects works-for-hire for 75
years. It is in excess of the European Community. I see no point
in extending protection of works-for-hire to 95 years, given that
there is no European precedent for the 95-year figure. It seems to
me that we're sort of moving too fast in an escalation of term ex-
tensions that do not need any further escalation.
One of our concerns is, again, speaking in kind of a disinterested
way — in other words, we're not copyright holders; we have no fi-
nancial interest in the proposed legislation, but we are users of
copyrighted material, and there is some question about the impact
this will have on the public domain. You'll hear extensively, I
think, more about theories of copyright law and the delicate bal-
ance that exists between a limited monopoly which protects the
copyright holder and eventual dissemination and spread of intellec-
tual ideas to the public, which benefits the public.
In this term extension, there seems to be no real impetus for cre-
ativity, which is one of the reasons that copyright protects authors,
is to spur their creativity — in this particular instance, for works-
for-hire. Authors may decide to produce works to benefit their im-
mediate heirs for several generations. A corporation does not make
works with an eye to some sort of successive corporation. The mo-
tion picture industry, for example, has a very short playoff of its
properties that last from 2 to 5 years.
This will include theatrical revenues, sale to cable, sale to video,
sale to network, and syndication. After that the film becomes part
of their library of works, one of their assets. Any moneys made
from a motion picture while it is in the status of an asset is pure
gravy. This is not the incentive which drives the production of new
works. So the logic that can be used to talk about the copyright law
as a spur to creativity really does not apply at all to works made
for hire.
On the other hand, works that fall into the public domain become
a very valuable resource for new creations, and this is an argument
that's been made again, but I will give you one or two examples.
I think one of the most forceful copyright holders is the Disney Cor-
poration. Yet, a great majority of their animated films are based
on stories that come from the public domain. You can go back to
"Snow White and the Seven Dwarves," "Pinocchio." More recently,
we have "Little Mermaid," "Beauty and the Beast," "Aladdin," and
"Pocahontas." And without this kind of well of source material, a
kind of cultural matrix of property that Disney very much needs,
depends upon, these great animated films of the last few years
would not have been made.
The same thing could be said for live action films. Kenneth
Brannagh has made two adaptations of Shakespeare films, "Henry
V," "Much Ado About Nothing." Martin Scorsese has recently
adapted Edith Wharton's "Age of Innocence," and Agnieszka Hol-
land has done an adaptation of "The Secret Garden," and so on and
283
so forth. "Little Women" was mentioned earlier. And we have
Gillian Armstrong's recent version last year of "Little Women."
But the real problem with the term extension in terms of the
way to fix the public domain is that in 1976 the term was extended
19, 20 years, whatever it is. It's proposed that it be extended again,
just as that term is about to run out. Will there be yet another pro-
posal within 20 years when this term is about to run out? In other
words, what kind of logic is driving this.
I understand the desire of copyright holders is to extend their
copyright protection in perpetuity, but, again, this necessarily must
be balanced against the, what I would say, larger needs of culture,
which has not been mentioned much here today; education, which
has not been mentioned at all today. So that the financial rewards
that come to creative artists, who are actually casted, unfortu-
nately, in the role of people who want to make more money out of
their works rather than people who are artists who are creative be-
cause they have to be. So I want to readdress this issue to suggest
that this balance between financial rewards and our responsibility
as citizens, the culture as a whole, must necessarily be regarded.
One of the problems with granting extension of 20 years to mo-
tion pictures and television works is that the American film indus-
try has been a notoriously poor custodian of its copyright materials.
Most of you know that up until 1950 over 50 percent of all Amer-
ican films perished. We're talking about a term of extension that
sort of begins in 1919 and goes to the forties or something. If you
look at that period of silent films of the twenties, only 20 percent
of all those films survived. This is because the studio said, "We
have sound. These silent films are economically worthless to us. We
will junk them," and that's, indeed, what happened. These films
have deteriorated in studio vaults or been dumped in the Pacific
Ocean.
It's been the public archive, on the other hand, that has taken
the initiative over the course of the copyright protection of actually
funding — perhaps they shouldn't have funded with public funds —
the preservation of some of these copyrighted works. It's only been
in the last 10 years, with the advent of aftermarkets of video and
cable, that the motion picture industry has taken a very, very ac-
tive role in preserving its own assets.
One of my concerns is preservation and access. I'm a member of
the National Film Preservation Board. And although it's not appro-
priate to talk about this in the context of copyright, it seems to me
that, if extended term is to be given to motion pictures and other
audiovisual material, there ought to be some assurance that these
materials would not suffer the experience that it had in the past;
that it would be preserved, and that there would be reasonable ac-
cess to it.
As educators, our problem is reasonable access, and I have a
whole document, anecdotal evidence of just how difficult it is to get
reasonable access to copyrighted and uncopyrighted materials,
which is in the record, but it is not trivial, the problems that are
faced by educators in trying to pass on the culture of the moving
image to our students.
And I think that the extension of rights to copyright holders in
this particular instance is not necessarily going to help us at all;
284
that quite often the pubHc domain is in some ways— faciUtates the
availabiUty of certain kinds of films that's not worth the studio's
time and effort to make available.
I see my time's run out. So I should stop here.
[The prepared statement of Mr. Belton follows:]
285
Prepared Statement of John Belton, Professor, Rutgers University, on
Behalf of the Society for Cinema Studies
Introduction
Founded m 1959, the Society for Cinema Studies is a professional
cr-ranization of college and university educators, filnunakers,
sc.'.olars, historians, and others concerned wiuh the study of the
moving iniage and recorded sound. Memoership of the Society currently
r.urr.bers xore than one thcusar.d . Activi-ies of the Society include
"he organization of an annual conference that is regularly attended
cy over 60C participants and .he publication of Cinema Journal , a
quarterly magazine devotee to film and television studies. The
Society has established e number of ccmmitTzees to deal with issues
related co our field; these include a moving image archive policy
committee and a committee on the preservation and access of film,
radio, end video/television materials for research and classroom use.
3C3 is also an active member cf the National Film Preservation Board.
Comments and Rationale
The Society offers the following comments on the proposed extension
of copyright protection. These comments are concerned chiefly with
the proposed legislation's application to motion pictures and other
audio-visual media. They seek to address issues of term extension as
they relate to works made for hire:
1. The proposed legislation fails to distinguish adequately between
different kinds of works.
Copyright law has established distinctions between works created by
individual authors and works made for hire. .^Vrguments in support of
this proposed legislation ignore those distinctions. The principles
of authorship that prevail in other art forms, such as painting and
literature, cannot be naively applied to the cinema and other audio-
visual media. The works of individual artists and authors are being
considered for extended protection in large part because of the
hardship that surviving family members might endure without continued
income from these works. However, this argument cannot be applied to
works made for hire, such as motion pictures and television programs,
which are copyrighted by large corporations. A corporation cannot be
compared to surviving family members nor can it be said to experience
individual hardships. Corporations are, by definition, not
individuals but collective entities established for the pursuit of
certain kinds of business ventures. The claim of "natural right" as
authors should not be extended to corporations.
2. The proposed legislation would impoverish the public domain as a
source for new works without providing any clear compensating
advantages.
Copyright protection is designed to encourage creativity by
PTi-Ofa Qfi _ 1 n
286
granting artists and authors a limited monopoly; it gives authors
exclusive rights to exploit their own work. The proposed addition of
twenty years of copyright protection may encourage future creativity
on the part of individual authors who wish to provide a livelihood
for themselves and their immediate heirs. Indeed, one reason given
for extending the term from "life plus fifty" to life plus seventy"
is the projected increase in the human life span. Thus the post
mortem auctoris term of seventy years should protect two generations
of descendants. Again, the logic used to arrive at the proposed
twenty year extension of present protection cannot be applied to
works made for hire. Their "authors" are corporations whose "life
span" is not changed by increases in human longevity.
Works made for hire are currently protected for a term of seventy-
five years. The new legislation proposes an extension of twenty
years to give corporations a "limited monopoly" of ninety-five years.
The argument that has been used to support this extension has been
the need for international conformity. Yet, since the Copyright Act
of 1976, American works for hire have enjoyed a longer period of
protection than their European counterparts. The Berne Convention
established a term of fifty years of protection after publication for
cinematographic works.' Have we suddenly entered an international
term-extension race where our seventy-five has forced the Europeans
to abandon their fifty for a new ninety-five? Is there a reason for
the new numbers? On what needs are they based?
The extension of copyright protection can have no impact as a
stimulus for creativity in terms of existing works. This argument
cannot be used to justify a retroactive term extension for existing
works. These works already exist, produced under different
incentives and constraints. It is not clear that the proposed change
for works made for hire from seventy-five to ninety-five years will
measurably increase creativity. The corporations that produce motion
picture and television programs operate on a short-term financial
basis. Their incentive for the publication of these works is far
more immediate in terms of rewards. They need to recoup their costs
and make a profit during their initial play-off, which runs from
roughly two to five years and includes a film's initial theatrical
release, its sale to cable, its marketing on video, its sale to
network television, and its syndication. After its initial play-
off, a film becomes an "asset" in the corporation's library of
holdings. Any profit that it generates after its initial play-off is
pure gravy and has little or no relation to the initial incentives
which led to its production.
The extension of copyright poses a threat to the concept of public
domain, which lies at the basis of copyright law. The United States
Constitution has given Congress the power "to promote the progress of
science and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries."^ As the Supreme Court noted, the concept of a limited
monopoly encourages and rewards creativity on the one hand while
assuring that the work will ultimately enjoy widespread public
availability.' The public domain is designed to function as a vital
source for new works. Indeed, Disney, one of the corporations that
287
will benefit from term extension, has based a number of its recent
works on public domain stories. This goes back, of course, to Snow
White and The Seven Dwarfs (1937), but includes The I,it~le MerT.aid
(1989), Beauty and tae Beasi: (1991), Alladin (1992), and Pocahantas
(1995). Within the last few years, Kenneth Branagh has adapted two
Shakespeare plays, Henry V and Much Ado .About Nothing ; Martin
Scorsese has brought Sdith Wharton's kae of Innocence to the screen;
Gillian Armstrong has filmed Louisa May Alcott's Little Women (1994),
and Anieszka Holland has made Frances Hodgson Burnett's The Secret
Garden (1993). Term extension will impoverish che public domain and
poses a threat to the spirit of copyright law. In 1976, terms were
extended and this came at the expense of the public domain. Just as
those earlier extensions are now about to expire, it is proposed that
they be extended yet again. Will additional term extensions be
proposed twenty years from now? Copyright holders naturally wish to
extend their rights, but successive extensions of copyright terms
will undermine--or perhaps even destroy — the concept of public domain
and the rights of the public.
3. The proposed legislation fails to consider the needs of users of
copyrighted material.
Lengthening copyright protection would have a significant impact on
users of copyrighted and public domain works. As educators and
scholars, we are concerned that this material will be increasingly
difficult to obtain for scholarly and classroom use. As part of the
nation's cultural heritage, such documents should be preserved and
studied by disinterested scholars and educators rather than hoarded
by copyright owners who may have little regard for the public good.
If copyrighted material is never made available for use, that
material has effectively been repressed or censored by its owners.
This is especially critical for motion picture and televisions works.
With the publication of a book, copies are sold to the public; some
copies are deposited in libraries. If that book goes out of print,
copies continue to survive in libraries and can be obtained by users
(via inter-library loan if your local library does not have it).
Motion pictures and television programs are not made available in the
same way. Copies of these works on film are not sold. Nor are they
deposited at libraries. Even the Library of Congress, which once
required two deposit copies of motion pictures, now returns deposit
prints at the request of the depositor. If motion pictures or
television programs have been deposited at the Library of Congress or
at a public archive, they can be studies on the premises. But they
cannot be used in the classroom or screened in theaters without the
permission of copyright holders.
Traditionally, copyright holders have not readily make films and
other materials available for educational or scholarly use. Or, if
access is given, the costs involved have been prohibitive. It is not
cost-effective for Hollywood studios, television networks, and large
distributors of television programs which make their profit from the
mass market to serve educational needs. Consequently, they
frequently refrain from providing educators with ready access to
288
culturally important audio-visual materials. Hundreds of American
films 'ire no longer available for classroom rental in 16mm or 35mm.
"or eximpie, existing 16mm crpies cf Alfred Hi"C".cccI< ' s 1943 classic
Shadow of a Doubt vere recently discovered to be some damaged chat
they had to be destroyed and the distributor consiiered it to be too
expensive to strike new prints. However, small distribution outlets
that deal in public domain films have learned how to make a profit in
this market. Hundreds of little-known films that educators would
like to jse in classrooms that will never find their way to 16mm
distribution or even video if the copyright term is extended. A
similar situation exists with regard to other audio-visual materials.
The more films that fall into the public domain, the more early
cinema, silent films, and historically important, early sound movies
will be available for educators to use in the classroom.
Historically, motion picture studios have not been responsible
custodians of their property. Half of all American films made before
1950 no longer exist, having been left to deteriorate in studio
vaults. For the last decade of silent films (the 1920s), the
statistics are even worse: only twenty per cent of these survive.
Only in the last ten years, with the expansion of video and cable
markets, have many of the studios taken steps to preserve their
holdings. This has also been the case for many television networks
and large television production companies. In the past, it has quite
often been the public archives, not the studios, that have taken on
the task of preserving our moving image heritage. To give the
studios an additional twenty years of copyright protection over
material that many of them have ignored for seventy-five years or
more is inappropriate. If the owners of works for hire secure these
additional rights, they should at least be required to preserve and
make available all titles that fall under this proposed legislation.
As users of copyrighted material, scholars and educators remain
concerned about the preservation of and access to these works. Any
new legislation should attempt to ensure that additional rights
copyright owners are accompanied by additional responsibilities of
these owners to the public.
Even when copyright owners do grant educators permission to use
their materials, they frequently set forth policies that make access
text to impossible. They may charge prohibitively high rates or
establish unnecessarily onerous conditions for their use. For
example, Hollywood studios have often demanded exorbitant fees or
unreasonable conditions for the use of stills and frame enlargements
which serve as evidence in scholarly arguments and teaching tools in
textbooks. In one instance. Paramount requested a payment of $20,000
from an educator for the use of several frame enlargements in a
textbook published by a university press. Columbia Pictures has
cranted requests to reprint photos from its films at exorbitant terms
'3500 per photo) and insisted that scholars secure releases from all
those depicted in the photo. In a similar case, CBS insisted that a
scholar publishing an essay in Cinema Journal dealing with visual
style in television soap operas secure releases from all those
lepicted in the photos. .As educators, we realize that much of our
jse of copyrighted material is protected by fair use provisions of
289
copyright law. However, the principle of fair use remains ambiguous,
decided in court by judges on a case-by-case basis. Copyright owners
tend to define the principle of fair use very narrowly and threaten
those who reproduce even the smallest part pf a copyrighted work,
such as a frame enlargement, with expensive lawsuits. Given this
sort of intimidation and the potential expense of going to court
against large corporations, educators and university presses are
reluctant to test the limits of fair use in court.
The proposed copyright extension also effects unpublislied works,
such as studio papers, production information, correspondence,
stills, and other materials. These materials were to enter the
public domain in 2002. The new legislation proposes to shield tliem
for an additional ten years. Extended protection of these materials
will restrict future film scholarship.
Conclusion
Scholars and educators have unique problems which are not addressed
by the proposed legislation to extend the period of copyright
protection. The proposed copyright extension threatens to strengthen
the rights of copyright holders in ways which we find to be
problematic. Even if term extension is deemed desirable for certain
works, it is not necessarily desirable for other kinds of works, such
as motion pictures or television programs made for hire. A copyright
extension will do little or nothing to spur creativity in the making
of new films and other audio-visual works and will have an adverse
effect on the production of new films based on public domain works.
Most importantly, by limiting our access to documents of cultural and
historical significance it will seriously hamper the mission of
educators as custodians and transmitters of our national moving image
heritage.
submitted by John Belton
Notes
1. Silkie von Lewinski, "EC Proposal for a Council Directive
Harmonizing the Term of Protection of Copyright and Certain Related
Rights," lie, 23, No. 6 (1992), 787.
2. Quoted in "Who Will Set the Tolls on the Information
Superhighway," unpublished comments by David Pierce of the
Committee for Film Preservation and Public Access (November 29,
1993), 9.
3. Twentieth Century Music Corporation v. Aiken, 422 U.S. 151, 156
(1975).
290
Mr. MOORHEAD. Professor Karjala.
STATEMENT OF DENNIS S. KARJALA, PROFESSOR OF LAW, AR-
IZONA STATE UNIVERSITY, ON BEHALF OF THE U.S. COPY-
RIGHT AND INTELLECTUAL PROPERTY LAW PROFESSORS
Mr. Karjala. Thank you. I want to thank the chairman and the
members of the subcommittee for inviting me to testify today. I will
present my views on this legislation and those of a great number
of my academic colleagues who work and conduct research on a
daily basis in the areas of copyright and intellectual property. Our
comments are based on a familiarity with the subject matter and,
we believe, a sensitive understanding of how copyright has tradi-
tionally sought to balance competing public and private interests.
I'd like to begin with a few words about American copyright phi-
losophy and tradition. The special genius of the U.S. copyright sys-
tem has been its emphasis on an appropriate balance of these pub-
lic and private interests. Our system has been remarkably success-
ful in promoting the creation of economically and culturally valu-
able products, particularly in the copyright industries like movies,
music, and computer software. This is shown by our current domi-
nant position in international trade in these areas.
We should know, however, that our dominance is primarily in
current products of authorship. Our system has been phenomenally
successful at continuing a supply of new and valuable work. The
movies like "The Lion King" and the most recent Sylvester Stallone
film, for example, generate vastly more revenues, probably any sin-
gle one of those movies generates more revenues, than all of the
works that are the true focus of this bill, which were produced in
the 1920's and 1930's. Nobody has the precise numbers, appar-
ently, but from the numbers we heard this morning, that seems not
an unfair estimate.
And the creation of these new products is possible because of the
rich and vibrant public domain that has been passed down to us
and our current creative authors from earlier authors. This valu-
able source of cultural building blocks is itself a product of our sys-
tem's careful balance of public and private interests. Our Constitu-
tion provides for the protection of intellectual property for limited
times to encourage the production of creative works. On the other
hand, the longer exclusive rights last in a particular work, the
more expensive it is for subsequent artists to create new works
based upon it. And the most important goal in drawing the balance
is that of promoting the creation and dissemination of information.
This, in turn, depends on the existence of a rich public domain con-
sisting of works on which contemporary authors can freely draw.
I'm glad that Representative Conyers has returned. He expressed
earlier this morning a special concern for the little guy, and I think
that's one of the more important people we're talking about. The
person who's out there today trying to create new works needs and
wants a vibrant box, if you will, of building blocks out of which new
works can be created. I think that it is very important to focus our
attention on this difference between old works and new works.
In my opinion, the extension legislation would prematurely, and
without compensating benefit, abandon our traditional balance in
favor of a stronger emphasis on private interests, in particular.
291
vested private interests. Europeans have long followed a different
copyright philosophy based on notions of so-called natural rights
rather than economic efficiency and overall social progress. We
should not abandon what has worked for us so well in the past
simply to imitate an untried European model that will provide an
economic bonanza to the owners of a relatively small number of
very old cop3n-ights at a cost of taking crucial building blocks out
of the hands of current authors.
We must ask whether we really wish to remake our cultural in-
dustries in the image of Europe. We should not make the mistake
of viewing the extension proposals as an us-against-them conflict
between Europe and America. This, in fact, is not a conflict be-
tween Europe and the United States. The real conflict in both
places is between the interest of the public in a richer public do-
main and the desires of copyright owners, who incidentally may or
may not be related to the authors in question, to control the eco-
nomic exploitation of the works that remain in their hands. That
Europe has resolved the conflict in one way does not mean that we
should blindly follow suit.
Our written testimony details the deficiencies of the arguments
offered in support of this extension legislation. The proposed exten-
sion would supply no additional incentives to the creation of new
works and it, obviously, supplies no incentive to the creation of
works already in existence. Moreover, the notion that copyright is
supposed to be a welfare system to two generations of descendants
has never been a part of American copyright philosophy, nor has
anyone made any showing, in fact, that life plus 50 years is insuffi-
cient to sustain a revenue stream through two generations.
In addition, so-called harmonization with European law would, in
any event, not be achieved by this legislation, even with respect to
length of term, much less with respect to other fundamental dif-
ferences like moral rights and fair use. Nor is the so-called unequal
treatment of U.S. copjrright owners in Europe a ground for mimick-
ing a bad European move that favors the owners of a few old, but
economically valuable, copyrights over the interests of the general
public. It is not unfair that a work enter the public 50 years after
the death of the author. Rather, that's an integral part of the social
bargain on which our highly successful system has always been
based. In fact, the works in question here, which were produced in
the 1920's and 1930's, have already received one 19-year extension
from the original 56-year term promised to their authors. After
suppl5dng a royalty stream for such a long time, now 75 years,
these old works should be available as bases on which current au-
thors can continue to create culturally and economically valuable
products.
We already have a balance of public and private interests that
protects works of authorship for a very long time. As I said earlier,
there's no tension here between Europe and America. The tension
is between the heirs and assignees of copyrights in old works ver-
sus the interests of today's general public in freer competition,
lower prices, and a greater supply of new work. Europe has re-
solved the tension in favor of the owners of old copyrights; we
should rather favor the general public.
Thank you.
292
[The prepared statement of Mr. Karjala follows:]
Prepared Statement of Dennis S. Karjala, Professor of Law, Arizona State
University, on Behalf of the U.S. Copyright and Intellectual Property
Law Professors
INTRODUCTION
The proposed legislation (H.R. 989) would extend the term of copyright protection for
all copyrights, including copyrights on existing works, by 20 years: For individual authors, the
copyright term would extend for 70 years after the death of the author, while corporate authors
would have a term of protection of 95 years. Unpublished or anonymous works would be
protected for a period of 120 years after their creation. The legislation would also extend the
copyright in works that may be as old as our Republic or even older but that were never
published prior to 1978 (when these works were first brought into the federal copyright system).
Initially, these copyrights would be extended by another 10 years (to the year 2013), and if the
copyright owners publish the works prior to 2013, copyrights in these already ancient works
would continue in force until the year 2047.
We believe that enactment of this legislation would impose substantial costs on the United
States general public without supplying any public benefit. It would provide a windfall to the
heirs and assignees of authors long since deceased, at the expense of the general public, and
impair the ability of living authors to build on the cultural legacy of the past. In following a
European model of regulation and rigidity, it would hinder overall United States competitiveness
in international markets, where the United States is currently at its most powerful. We therefore
conclude that it would be a mistake to extend any of the copyright terms of protection.
SUMMARY OF ARGUMENT
Various reasons have been offered in support of the extension proposal: Some say that
the extension is necessary as an incentive for the creation of works. Some argue that the current
period for individual authors— 50 years after the death of the author-was intended to provide an
income stream for two generations of descendants and that the longer human life span now
requires a longer copyright term. Some maintain that we should adopt an extended term because
the countries of the European Union have done so, in order to "harmonize" our law with theirs.
Some claim that the longer copyright term is necessary to prevent royalty inequality between
United States and European copyright owners.
None of these arguments take into consideration the costs to the United States public of
an extended copyright term. Moreover, the arguments are either demonstrably false or at best
without foundation in empirical data. If incentives were the issue, there would be no need to
extend the copyrights on existing works, even if one were to accept the dubious proposition that
the extra 20 years provide an incentive for the creation of new works. If we were worried about
two generations of individual descendants, we should prohibit the first generation from selling
the copyright outright, and we would have no need to extend the term for corporate authors.
If we believe in harmonization, it is in any event not achieved under the proposed legislation nor
does supposed royalty inequality provide a basis for extending the term. The discussion below
shows the failure of these arguments in detail. It also shows that the costs to the United States
general public vastly exceed even the gains to those relatively few copyright owners who would
Written Testimony of Intellecmal Property Professors
Page 1
293
benefit from the extension and that the general public itself would receive no compensating
benefits.
Once the errors in the argtmients for increasing the term have been exposed, the real
reason for the legislation becomes clear: The maintenance of royalty revenues from those
relatively few works from the 1920's and 1930's that continue to have significant economic
value today. The continued payment of these royalties is a wealth transfer from the United
States public to current owners of these copyrights. These copyright owners are in most cases
large companies and in any case may not be descendants of the original authors whose works
created the revenue streams that started flowing many years ago. To our knowledge, no one has
made a study of just how great this wealth transfer would be, although it is clearly large enough
to generate fervent support for the proposed legislation by performing rights societies, film
studios, and other copyright owners in economically valuable works whose copyrights are
otherwise due to expire in the next few years.
The works about to enter the public domain, absent this legislation, were created in 1920.
At that time and for many years thereafter, society's "bargain" with the actual authors was a
period of exclusive rights under copyright for a maximum of 56 years. Those authors produced
and published their works with the understanding that the works would enter the public domain
56 years later. Yet, notwithstanding that bargain, the period was extended by 19 years in 1976
to 75 years, as were the terms of all copyrights acquired after 1920. Now, 19 years later, these
same copyright owners have remmed seeking yet another extension to continue the wealth
transfer for another 20 years, without supplying any evidence, or even any arguments, that the
public will benefit.
This wealth transfer from the United States general public to copyright owners is,
moreover, only a part-probably a small part—of the total cost that we and coming generations
will bear if the extension is adopted. It is important to remember that the extension would apply
to foreign as well as United States works. Therefore, in order to maintain a flow of revenue
to the owners of United States copyrights, the general public will continue to pay on foreign
copyrights from the 1920's whose terms must also be extended. No one has shown that there
will even be a net international inflow of royalties from the works at issue.
Even worse, to maintain the royalty revenues on those few works from this period that
have continued economic viability, the copyrights must be extended on all works. This includes
letters, manuscripts, forgotten films and music, out-of-print books, and much more, all potential
sources on which current authors and scholars can base new works. Copyrights can and usually
do have very complicated multiple ownership so many years after an author's death. The
transaction costs of negotiating for use can be prohibitively high, even for works that no longer
have economic value. None of the arguments for extension take into consideration the loss to
both revenue and culture represented by the abseiKe of new popular works that are not created
because underlying works that would have served as a foundation remain under the control of
Written Testimony of Intellectual Property Professors
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294
a copyright owner. By definition, this loss can never be known, but that makes it no less real
or substantial.
The creation of new works is dependent on a rich and vibrant public domain. Without
good reason to expect a substantial compensating public benefit, we should not risk tying the
hands of current creative authors and making them less competitive in domestic and international
markets just to supply a financial windfall to owners of copyrights in works created long ago.
Just as Santa Claus and the Easter Bunny are part of the public domain that anyone can use
every Christmas and Easter season, so eventually should Mickey Mouse and Bugs Bunny also
join our freely available cultural heritage. That is a crucial part of the copyright "bargain" that
the public made at the time these works were created.
We recommend that the proposed legislation be rejected. The issue is certainly an
important one, but the legislation is premature at best where there has been no empirical
demonstration of a public benefit and no thorough exploration of alternative approaches.
UNITED STATES COPYRIGHT POUCY
Both Congress and the courts have uniformly treated United States copyright law as an
instrument for promoting progress in science and the arts to provide the general public with
more, and more desirable, creative works:
The limited scope of the copyright holder's statutory monopoly, like the limited
copyright duration required by the Constitution, reflects a balance of competing
claims upon the public interest: Creative work is to be encouraged and rewarded,
but private motivation must ultimately serve the cause of promoting broad public
availability of literature, music, and the other arts. The immediate effect of our
copyright law is to secure a fair return for an "author's" creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for the general
public good.'
United States copyright tradition is in this respect philosophically different from that of many
other coimtries that treat intellectual property as natural rights of individual creators. Under our
system. Congress need not recognize intellectual property rights at all, but if it does, the purpose
must be to promote innovation in science and the useful arts.
Our system of copyright protection is delicately balanced. We recognize exclusive rights
in creators so that consumers have available an optimal number and quality of works but want
those rights to be no stronger than necessary to achieve this goal.^ We do not recognize new
I. Twentieth Century Music Corp. v. Aiken. 422 U.S. 151, 156 (1975)(footnotes omitted).
2 1 P. Goldstein, Copyright § 1 . 1 . at 6-7.
Written Testimony of Intellectual Property Professors
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295
intellectual property rights, or strengthen old ones, simply because it appears that a worthy
person may benefit; rather, we do so only for a public purpose and where it appears that there
will be a public benefit. The current statutory foundation of copyright protection, the Copyright
Act of 1976, is itself the product of lengthy debate and represents innumerable compromises that
seek to achieve the proper balance between private returns to authors and public benefit,
including a broad public domain that permits current authors to build on the cultural heritage
from those who have come before them.
We are aware of no effort by the proponents of this extension legislation to show that the
public benefits from its enactment would outweigh the costs. Indeed, they have demonstrated
no public benefit whatsoever and have barely attempted to do so. Yet, the public cost in the
form of a diminished public domain is obvious.^ As we demonstrate below, this public cost is
not offset by any increased incentive to create new works, nor does international trade in
intellectual property rights fill the gap between public costs and public benefits.
Europe, whose copyright law is based more on a natural rights tradition, has recently
moved to a life + 70 regime for individual authors and a 70-year period of protection for
corporate authors. That should not cause us to change our underlying intellectual property
philosophy. Nor does it provide a reason for avoiding the careful cost/benefit analysis called
for by that philosophy. The United States joined the Berne Convention for many good reasons,
one of which was to become an influential leader in world intellectual property policy. Our
underlying policy has served us well, as shown by our dominant position in the worldwide
markets, particularly for music, movies, and computer software. Rather than following Europe
we might better seek to persuade Europeans that our approach to intellectual property rules both
rewards creativity and promotes economic efficiency.
In the following sections we consider in some detail the arguments put forward in support
of the extension. We fu-st show the very real and substantial costs to the public that would result
from adoption of this legislation— costs that are ignored by the arguments of its proponents. We
The proponents of the extension could at least have considered less drastic means of achieving their
asserted goals. They might have proposed, for example, a 'no injunction' regime SO years after the
author's death, which could provide a continuing royalty to the owners of copyrights in economically
valuable works (at the expense of the public) but would at least permit current and future authors to use
all old works. 50 years after their authors' deaths, in creating new ones. The proponents might also
have considered a reversion of all rights in the extended term to the descendants of the individuals who
created the work, whether in a work-for-hire situation or not. Or they might have suggested at least
prospective limitation of the work-for-hire term to 70 years, in the interest of harmonizing our law with
that of Eim)pe. The law professors who have signed this testimony are not in agreement about whether
any such limitations might temper their objections to the bill. The absence of any sign that measures of
this type have even been considered, however, shows that the proponents of the extension have not
concerned themselves with the public cost of their proposal. Congress, as representative of all the
people and not just the special interests whose voices are loudest, must seek to maintain an appropriate
balance by very carefully weighing the costs against the purported benefits.
Written Testimony of Intellectual Property Professors
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296
then go on to show that the arguments in favor are either logically fallacious or unsupported by
any plausible evidence.
COSTS OF A LONGER PROTECTION PERIOD
While the asserted public benefits of an extended copyright protection period range from
speculative to nonexistent, two identifiable costs are real and substantial: The first is the
economic transfer payment to copyright owners during the period of the extension from
consumers or other producers who would otherwise have free use of works. The second is the
cost to the public of works that are not produced because of the diminished public domain.
Economic Costs and Transfers
The direct economic costs of a 20-year-longer period of protection, although difficult to
calculate precisely, includes higher cost to the consuming public for works that would otherwise
be in the public domain. That these costs are substantial is shown by the very claims of the
proponents of this legislation that they will miss out on the European windfall if we do not
extend our term to that of Europe. This windfall does not arise out of whole cloth. Rather, it
is ultimately paid by consumers, that is, by the general public. And if Europeans will be paying
for the right to use United States works in Europe, the United States public will be paying for
the right to use both United States and European works here at home, increasing the windfall
to copyright owners at the expense of United States consumers.
In the legislative history of the Copyright Act of 1976, it was argued that the general
public received no substantial benefit from a shorter term of protection, because the cost for
works in the public domain was frequently not significantly lower than that for works still under
copyright.'' Even without the fervor of the special interest protagonists of this legislation,
however, economic theory tells us that the price to the public for popular works must, through
competition, decrease to the marginal cost of producing the work if there are no exclusive rights.
If the work is under copyright, the marginal cost of production would have to include the royalty
owing to the copyright owner, even if there is general licensing to competing producers of the
work. Moreover, if there is no general licensing of a copyright-protected work, the price can
be expected to be set at the level that maximizes the return of the copyright owner, which is
invariably higher than the marginal cost of production. Consequently, any claim that the public
pays the same for public domain works as for protected works is implausible, at least in
general/ Educational and scientific uses would also seem to be large markets for public domain
H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133 (1976).
Of course, the market for many public domain works may often be small, with the result that
competition is thin, or even nonexistent. This can allow, say, a book publisher to charge a price for a
republished public domain work that is consistent with prices for similar types of books that are under
copyright. Given the thin market, such a price may be necessary for this publisher even to cover
Written Testimony of Intellectual Property Professors
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297
works. At a time of rising educational costs we should inquire into the effect on our schools
of a reduced public domain due to an extended protection period. Something more than
anecdotal evidence should be presented before we accept the claim that the consuming public
will not incur higher costs from the longer period.
Cost of a Diminished Public Domain
An even more important cost to the public is that paid in desirable works that are not
created because of the continuing copyright in underlying works:
More than a nodding acquaintance with the concept of public domain is
essential to comprehension of intellectual property law and the role of the United
States Congress in creating that law. The addition of a creation to the public
domain is an integral part of the social bargain inherent in intellectual property
law.*
While primary control over the work, including the rights to refuse publication or republication
and to create derivative works, properly remains in the author who has created it, giving such
control to distant descendants of the author can deprive the public of creative new works based
on the copyright-protected work. Artistic freedom to make creative derivative works based on
public domain works is a significant public benefit, as shown by musical plays like Les
production costs (including a noimal return). This does not mean that the public domain status is
irrelevant, because if a royalty were required in addition, such a book might not be republished at all.
It may also be that the works in question are not public domain works but rather derivative works
based on public domain works. A new derivative work is, of course, itself copyright protected and can
be expected to sell at the same price that the public pays for other protected works in that category. In
this case, continued copyright protection for the underlying work may require sharing of the profits
generated by the new work, with no economic benefit to the public in the form of a lower net price.
As there is also no net economic cost to the public, however, the economic effect of lengthening the
protection period requires identification of the parties sharing the monopoly. One of those parties is,
by hypothesis, the new author, whose creativity has resulted in the new derivative work. The other
will be the owner of the copyright in the underlying work, who may or may not be distant descendants
of the original author. In this case, true concern for authors would seem to favor not lengthening the
protection period.
Finally, as discussed below, when the underlying work remains under copyright, the real cost to the
public may come from those new derivative works that are not created because of the new author's
inability to negotiate permission from whoever owns the copyright SO years after the original author's
death.
Robert W. Kastenmeier & Michael J. Remington, The Semiconduaor Chip Protection Aa of 1984: A
Swamp or Firm Ground?, 70 Minn. L. Rev. 417, 459 (1985); see also Peter Jaszi, When Works
Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 U.C.L.A. L. Rev.
715, 804-05 (1981).
Written Testimony of Intellectual Property Professors
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298
Miserables, Jesus Christ Superstar, and West Side Story, as well as satires like Rosencrantz and
Guildenstem are Dead and even literary' classics like James Joyce's Ulysses. Although these
might not necessarily be considered infringing derivative works even if the underlying work
were under copyright, or might be excused by the fair use doctrine if otherwise infringing, their
authors must necessarily take a cautious approach if a license is unavailable. When copyright
subsists long after an author's death and there is no provision for compulsory licensing, the
creation of derivative works that closely track a substantial part of the underlying work can be
absolutely prohibited by copyright owners who have no creative relationship with the work at
all. Authors of histories and biographies can also be inhibited from presenting independent
analyses of earlier authors and their works by descendants who, for whatever personal reason,
use copyright to prevent the publication of portions of protected works.
An important cost paid by the public when the copyright term is lengthened, therefore,
is contraction of the public domain. The public domain is the source from which authors draw
and have always drawn.' The more we tie up past works in ownership rights that do not convey
a public benefit through greater incentive for the creation of new works, the more we restrict
the ability of current creators to build on and expand the cultural contributions of their forebears.
The public therefore has a strong interest in maintaining a rich public domain. Nobody knows
how many creative works are not produced because of the inability of new authors to negotiate
a license with current copyright holders, but there is at least anecdotal evidence that the number
is not insubstantial.^ Unless evidence is provided that a life + 70 regime would provide a
significant added incentive for the creation of desirable works, the effect of an extension may
well be a net reduction in the creation of new works.
This point may be highlighted by the rapid developments now occurring in digital
technologies and multimedia modes of storing, presenting, manipulating, and transmitting works
of authorship. Many multimedia works take small pieces of existing works and transform them
into radically different combinations of images and sounds for both educational and entertainment
purposes. The existing protection period, coupled with termination rights, may well be
distorting or inhibiting the creation of valuable multimedia works because of the transaction costs
See generally Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990); David Lange,
Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981). For an argument that copyright
is also intended to accommodate users' rights, see L. Ray Patterson & Stanley W. Lindberg, The
Nature of Copyright (1991), which includes a Foreword by former Congressman Kastenmeier.
Nearly 50 yean ago Professor Cbafce pointed to examples in which the veto power of copyright in an
author's descendants deprived the public of valuable works. Chafee, Reflections on the Law of
Copyright: II, 45 Colum. L. Rev. 719 (1945). There have been press reports of refusals by the estate
of Lorenz Hart of permission to use Hart's lyrics to any biographer who mentions Hart's homosexuality
and of censorship by the husband of Sylvia Plath of the work of serious biographers who wish to quote
her poetry. Professor Jaszi has provided examples of derivative-work films whose continued
distribution has been limited or even suspended because of conflicts with the owner of the copyright in
the underlying work. Peter Jaszi, supra note 6, at 739-40.
Written Testimony of Intellectual Property Professors
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299
involved in negotiating the number of licenses required. Ultimately, the rapid changes in the
intellectual property environment for creating and disseminating works may necessitate a
reassessment by the international community of the underlying intellectual property rules. In
the meantime, extending the protection period can only exacerbate this problem. The United
States should be leading the world toward a coherent intellectual property policy for the digital
age and not simply following what takes place in Europe.
REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT TERM
Incentives for the Creation of Works
It does not follow that a longer term automatically drives creative authors to work harder
or longer to produce works that can be enjoyed by the public. Indeed, there is necessarily a type
of diminishing return associated with an ever-longer protection period, because the benefit to the
author must be discounted to present value. As Macaulay observed over 150 years ago:
[T]he evil effects of the monopoly are proportioned to the length of its
duration. But the good effects for the sake of which we bear with the evil effects
are by no means proportioned to the length of its duration. . . . [I]t is by no
means the fact that a posthiunous monopoly of sixty years gives to an author
thrice as much pleasure and thrice as strong a motive as a posthumous monopoly
of twenty years. On the contrary, the difference is so small as to be hardly
perceptible. ... [A]n advantage that is to be enjoyed more than half a century
after we are dead, by somebody, we know not by whom, perhaps by somebody
unborn, by somebody utterly unconnected with us, is really no motive at all to
action. . . .'
Thus, while an additional year of protection has little or no incentive effect at the time of a
work's creation, the costs are immediate and substantial if the extension is to apply to existing
works, as provided in the proposed legislation.
The copyright industries are by their nature very risky, and no one in these industries
makes fmancial decisions based on even 50-year, let alone 70-year, projections. Moreover,
under the United States Copyright Act, most transfers of copyright by an individual author may
be terminated 35 years after the grant. '° The existence of these inalienable termination rights
in individual United States authors makes it even more unlikely that anyone would pay more to
8 Macaulay, Works (Trevelyan ed. 1879) 199, quoted in Chafee, Refleaions on the Law of Copyright:
II, 45 Colum. L. Rev. 719 (1945), requoted in R. Gonnan & J. Ginsburg, Copyright for the Nineties
307 (4th ed. 1993).
17 U.S.C.A. § 203.
Written Testimony of Intellectual Property Professors
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exploit a work under the extended term than would be paid under the current life + 50 period."
The extension, therefore, holds little promise of fmancial benefit to individual authors.
The absence of any additional incentive for corporate authors from the extension of the
copyright period to 95 years is also easily seen. Consider an assured $1,000 per year stream
of income. At a discount rate of 10%, the present value of such a stream for 75 years is
$10,992, while the present value of a 95-year stream is $10,999, a difference of less than 0. 1 % .
Even at a 5% discount rate, the present values are only $20,485 and $20,806, respectively, a
difference of about 1.5%. And these minuscule present value differences are for guaranteed
streams of income. When risk is factored into the analysis, the present value of a 75-year
stream and that of a 95-year stream must be considered essentially identical. The chance that
a given copyright will still have nontrivial economic value 75 years after the work is created is
very small—only a tiny fraction of all works retain economic value for such a long time. No
company will take the "extra" 20 years into consideration in making a present decision to invest
in the creation of a new work. In fact, an ongoing successful company like Disney is more
likely to be spurred to the creation of new works like The Lion King or The Little Mermaid
because it realizes that some of its "old reliable" moneymakers, like Mickey Mouse, are about
to enter the public domain.
It is therefore extremely unlikely that an additional 20 years of protection tacked onto the
end of a copyright protection period that is already very long will act as an incentive to any
current author to work harder or longer to create works he or she (or it) would not have
produced in any event. What is certain, however, is that such an extension of the copyright
term would seriously hinder the creative activities of future as well as current authors.
Consequently, the only reasonable conclusion is that the increased term would impose a heavy
cost on the public-in the form of higher royalties and an impoverished public domain— without
any countervailing public benefit in the form of increased authorship incentives.
Indeed, if incentives to production were the basis for the proposed extension, there would
be no point in applying it to copyrights in existing works. These works, by definition, have
No human author can possibly receive anything more in exchange for terminable rights in his or her
work under a life + 70 regime than under the current life + 50 regime. The reason, quite simply, is
that no purchaser of copyright rights will pay anything for the "extra" 20 years of the term, because
those supposed extra years can be freely terminated, along with whatever remains of the current period,
before they ever begin. An exception is the right to continued exploitation of derivative works, which
cannot be terminated. Even in this case, however, the maximum "extra" value to the transferring
author is the present value difference between a 50-year and a 70-year protection period. Even for
guaranteed income streams, this difference is around 5.4% (at an assumed 5% discount rate). That is,
a guaranteed income stream of $1,000 per year for 50 years has a present value of $19,256 while the
same stream for 70 years has a present value of $20,343. The purchaser of the derivative work right,
however, will not be willing to pay anything close to this difference in present value, because of the
overwhelmingly high risk thai the derivative work created pursuant to the purchased right will have an
economic life, like most works, far less than even the 50 years now afforded.
Written Testimony of Intellectual Property Professors
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already been produced. Yet, if the extension were purely prospective (i.e., applicable only to
new works), we could be certain that support for it would wither rapidly. Thus, the real issue
is the continued protection of old works--not those that will enter the public domain 50 (or 70)
years from now but rather those due to enter the public domain today. These works were
originally published in 1920 (works published before 1978 have a flat 75-year copyright rather
than the current life + 50 for individual authors). At that time, the law afforded a maximum
of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now
the descendants and assignees of these authors want yet another 20 years. The very small
portion of these works that have retained economic value have been producing royalties for a
full 75 years. In order to continue the royalty stream for those few copyright owners, the
extension means that all works published after 1920 will remain outside the public domain for
an extra 20 years. As a result, current authors who wish to make use of any work from this
period, such as historians or biographers, will need to engage in complex negotiations to be able
to do so. Faced with the complexities of tracking down and obtaining permission from all those
who by now may have a partial interest in the copyright, a hapless historian will be tempted to
pick a subject that poses fewer obstacles and annoyances.
Copyright in Works Never Published Prior to 1978
Until the effective date of the Copyright Act of 1976, works that had never been
published were protected under the various state copyright statutes. Only published works were
governed by the federal statute. However, the 1976 Act preempted state protection for
unpublished as well as published works and, as a quid pro quo for the loss of perpetual state
copyright protection, recognized a copyright in these previously unpublished works until the year
2003. As an incentive to publication of these works, the current law also extends their
copyrights until the year 2027, provided they are published prior to 2003. The proposed
legislation would extend these periods by 10 and 20 years, respectively, so that a previously
unpublished work will be protected until 2013 and, if published prior thereto, it will remain
under copyright until the year 2047.
An example is the recently discovered fragment from a draft of Mark Twain's
Huckleberry Finn. The copyright on the published novel was registered in 1884, renewed by
Twain's daughter in 1912, and expired in 1940. Even if a life + 70 system had been in place
at the time of the work's creation, the copyright would have expired in 1980, along with
everything else Marie Twain wrote (because he died in 1910). Because this story of Huckleberry
Finn and Jim in the cave has now been published, however, current law recognizes the copyright
until 2027. Under the proposed extension, the copyright on this story, already over 110 years
old, will continue until the year 2047.
We are not aware of any arguments in support of these particular extensions of the
copyright period of protection. In contrast to the Mark Twain fragment, most of these works
have only scholarly value, because if they were readily available and had economic value, they
would already have been published. Moreover, many of these works are truly aiKient-letters
Written Testimony of Intellectual Property Professors
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and diaries from the founding fathers, for example~and constitute a vital source of original
material for historians, biographers, and other scholars.
Obviously, the normal copyright incentive to creative authorship is not involved here.
This is simply an incentive to current owners of copyrights in very old works to find the works
and publish them so that they will be accessible to everyone. By the year 2003 we will already
have afforded the very distant descendants of the authors of these works 25 years of protection,
plus the possibility of 50 years of protection if they find and publish the works. Twenty-five
years is enough time for these owners to accomplish the ministerial tasks. These unpublished
works should be allowed to go into the public domain in 2003, so that others will then have an
incentive to find and publish them.
Finally, even as to such of these works that are published prior to 2003, we can think
of no argument, whether founded in natural law or otherwise, to support extending their term
of protection until 2047. Fifty years of copyright protection for such old works, in favor of
people who have no creative relationship with the works at all, is more than enough.
Support for Two Generations of Descendants
It is also argued that the copyright protection period was initially designed to provide a
source of income to two generations of descendants of creative authors. Given the longer life
spans of today, the argimient goes, a longer term is necessary to achieve this goal.
Far from requiring longer copyright terms to compensate for longer life expectancies,
these actuarial changes could be an argument for keeping the current term of life + 50, or
perhaps even reducing it, because the longer life expectancy of the author automatically brings
about a longer period of copyright protection. A longer overall life expectancy, moreover, does
not in itself imply that the second generation loses anything in comparison with earlier eras. The
crucial age for the second generation is not the absolute number of years grandchildren may be
expected to live but rather the number of years they survive after the author's (i.e., their
grandparent's) death. The copyright period is measured from the death of the author, and if
grandchildren are living longer, so too are authors themselves. Certainly no one has provided
data to show that grandchildren of today have significantly longer life expectancies than today's
grandparents, let alone 20 years longer. Consequently, we should expect the current cohort of
authorial grandchildren to remain alive for roughly the same length of time after their
grandparents' deaths as at other times in this century.
Second, protection of two generations of descendants is not the inevitable result hi a
longer protection period. The copyright in a work that has been exploited and become popular
will often have been transferred by the author or her descendants. Any termination rights with
respect to the work will have already been exercised before the descendants in question here ever
Written Testimony of Intellectual Property Professors
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come into the copyright picture.'^ It is very likely that the copyright will have been
retransferred after any termination before the current life + 50 year period has expired. Unless
these transfers provide for a continuing royalty, there will be no royalties for the author's
descendants who are alive thereafter. Moreover, even if the transferee is under obligation to pay
a continuing royalty, it cannot be assumed that the royalty stream will accrue to distant relatives
of the original author, such as great-grandchildren. The royalty may well be transferred outside
the family, by will or otherwise, by earlier descendants. If sustenance to two generations of
authorial descendants is really the goal, we should be considering prohibitions on transfers
and/or stronger termination rights rather than a longer term of protection.
Third, even the "natural law" argument on behalf of such distant descendants of authors
is very weak. These equitable claims to a continued income stream obviously diminish with
increasing temporal distance of descendants from the creative author. More important, while
one can understand the desire of authors to provide a substantial estate to their immediate
offspring, one must question the economic efficiency of a system that, as a matter of policy,
seeks to grant an easy flow of income to a group of people the majority of whom the actual
author may never have known. The descendants themselves would probably be better off, and
certainly the general public would be better off, if they were to engage in some productive
activity. United States copyright policy is not and has never been designed as a welfare system.
It is therefore not entirely flippant to say to these distant descendants of creative authors who
died 50 years ago what many now say to current welfare recipients: "Get a job! "
Fourth, while the Directive in the European Union mentions protection for two
generations of descendants as one of twenty-seven "Whereas" grounds for the extension in
Europe," it has never been recognized as a goal of United States copyright law. Indeed, today's
longer life expectancies were offered as a basis for the recent substantial extension of the
copyright term in 1976, from 56 years to life -I- 50 years, without any mention of a "two
generation" goal. '" Surely life expectancies have not increased since 1976 to justify an additional
20 years of protection on this ground. Going to our current life -I- 50 system was necessary in
order for the United States to join the Berne Convention, and one could at least make a coherent
argument that the benefits of joining Berne might outweigh the costs of the diminished public
domain resulting from the longer copyright. The "two generation" argument, however, is
devoid of any relationship to a public benefit. We therefore question whether such a claim
comports with basic United States copyright principles and the social bargain that places works
in the public domain after the copyright has expired.
12. Termination rights accrue 35 years after a grant by an author and expire 40 years thereafter. Because
the extra 20 years that would be added by the extension to the protection period begin SO years after
the author's death, all termination rights with respect to any authorial transfer will either have been
exercised or have expired.
13. Council Directive 93/98/EEC (Oct. 29, 1993).
14. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133-34 (1976).
Written Testimony of Intellectual Property E*rofessors
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Finally, even if "two generations of descendants" were a valid basis for extending the
copyright term for works of individual authorship, it provides no justification whatsoever for
extending the term for corporate authors from 75 to 95 years.
We conclude that the "two generation of descendants" argument is invalid on its face,
advocates economic inefficiency, fails to comport with basic United States copyright principles,
and is applicable at best to the term for individual authors. It cannot serve as a basis for the
diminished public domain that the extension would effect.
"Harmonization " with European Law
The European Union has now directed its members to adopt a life + 70 term of
copyright duration. Possibly because of the European namral rights tradition, neither the
proposal in Europe nor its adoption was based on a careful analysis of the public costs and
benefits of extending the term. Nevertheless, some argue that we must do the same to "protect"
United States copyright owners, against whom the "rule of the shorter term" may be used to
provide a shorter period of protection in Europe for United States works (life + 50) than is
given to European works (life + 70). They also argue that harmonization of the worldwide term
of protection is a desirable goal in its own right and that failure to adopt the European term will
have an adverse effect on the United States balance of international trade. We first consider the
general harmonization goal and, in the next sections, take up the question of the supposed
"prejudice" United States copyright owners and the balance of trade would suffer in Europe were
we not to follow the European example.
Harmonization of worldwide economic regulations can often be useful, especially if
differences in legal rules create transaction costs that inhibit otherwise beneficial exchanges. In
some cases harmonization can be beneficial even if the uniform rule is in some sense less than
ideal. Thus, a uniform fu-st-to-file rule for patents might make sense even if we believe that a
first-to-invent rule is better in the abstract, because otherwise United States inventors-the very
people whom we are hoping to encourage through the offer of a patent monopoly—might fmd
it too burdensome to seek international protection. In that case the uniform rule goes to the very
existence of the patent and not simply an extension of the duration of protection. We need not,
however, seek uniformity for its own sake, if it means compromising other important principles.
If the United States determines that works should belong to the public domain after life + 50
years, no transaction cost problem is posed to United States authors by the longer period in
Europe. The ultimate owners of their copyrights will, of course, be able to exploit them for a
shorter period, in both Europe and the United States, but that is the result of our policy choice
to make the worics freely available and not because of the absence of harmonization.
In addition, even if harmonization is desirable, the question remains, who should
harmonize with whom? Although doubts were expressed about the constitutionality of a life -I-
Wrinen Testimony of Intellectual Property Professors
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50 year period of protection at the time the Copyright Act of 1976 was adopted, '^ that standard
could then accurately be denominated international'* and was in any event necessary if we were
ever to join Berne. Life + 70 years is not an international standard today, notwithstanding
recent actions in the European Union, nor will it become one without United States support.
It was not even the standard in Europe until the European Council of Ministers directed that its
member states adopt a uniform term of protection equal to the longest of any of its members.
If the cost/benefit analysis required by our copyright tradition does not justify changing the
social policy balances we have drawn, we might better use our influence to encourage the rest
of the world to remain with our standard, and Europe to return to it, rather than follow a
decision in Europe that was made without consideration of the factors we have always deemed
crucial to the analysis.
Moreover, the proposed legislation is not really aimed at harmonizing United States and
European law. It would, for example, extend the copyright period for corporate "authors" to
95 years <or 120 years if the work is unpublished). The European Union, by contrast, now
offers corporate authors, for countries recognizing corporate "authorship," 70 years of
protection, which is less than the 75 years we currently offer such authors. Consider also the
works of Sir Arthur Conan Doyle, who died in 1930 and whose works have since 1981 been in
the public domain in England (and Europe). Because works Hrst published before 1978 have
a 75-year period of protection rather than the current life + 50 term, those works of Conan
Doyle published in the 1920's remain under United States copyright. Thus, production in this
country of public domain collections of his entire works is prohibited, although Europeans may
do so freely. Because his last work was apparently published in 1927,''' it is scheduled to go
into the United States public domain at the end of the year 2002. The extension would continue
this "disharmony" until the year 2022.
There are many other features of copyright law that are not "harmonized" even within
Europe, let alone between Europe and the United States, including moral rights and the
15. E.g., 14 Omnibus Copyright Revision Legislative History, House Hearings 1975 (Part 1) 133-34, 141-
42 (testimony of Irwin Goldbloom, Deputy Assistant Attorney General, Civil Division, Depanment of
Justice). Some believe that special constitutional problems arise from an extension of the period of
protection for works already under copyright, because it recaptures from the public domain works that
should be freely available under the 'bargain' made at the time the work was created and offers no
countervailing public benefit. They argue that the constitutional term "limited times' must be
interpreted in terms of the constitutional goal to promote the progress of science and the useful arts.
16. E.g., id. at 108 (testimony of Barbara Ringer, Register of Copyrights); id. at 120 (testimony of Joel
W. Biller, Secietaiy for Commercial Affairs and Business Activities, Department of State).
17. The Advemure of the Veiled Lodger was published on January 22, 1927, and The Adventure of
Shoscombe Old Place was published on March 5, 1927. Robert Bun de Waal, The Worid Biography
of Sherlock Holmes and Dr. Watson 13, 23 (1974). This same source lists other Conan Doyle stories
as having been published in 1921, 1922, 1923, and three each in 1924 and 1926.
Written Testimony of Intellectual Property Professors
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important United States concept of fair use. "Harmonization" is therefore not in itself a valid
ground for extending any of our current copyright protection terms.
Unequal Treatment of United States Copyright Owners
In addition to lengthening the copyright term for individuals to life + 70 years, the
European Union has adopted the "rule of the shorter term," under which works are protected
only for the shorter of the European term or the term in the country in which the work
originates. Therefore, it is true that retaining our current term of protection would deny some
United States copyright owners (mainly companies rather than individuals) the financial benefit
of this European windfall. But the mere fact that the European Union has adopted a bad idea
does not mean that the United States should follow suit. France might elect in the future, for
example, to give the works of Voltaire or Victor Hugo perpemal copyright protection, but that
would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European
copyright tradition, as we have noted, differs in important ways from that of the United States,
primarily by treating copyright as a kind of natural entitlement rather than a source of public
benefit. The European approach may on balance tend to discourage, rather than promote, new
artistic creativity. We should not, therefore, assume that a policy giving a few United States
firms and individuals an added financial windfall from works created long ago necessarily is one
that promotes our long-term competitiveness in the production of new works.
This extension proposal is perhaps an occasion to consider the special character of United
States copyright and the features that distinguish our law from its continental counterparts. The
constimtional concept of a limited term of copyright protection is based on the notion that we
want works to enter the public domain and become part of the common culmral heritage. It is
worth noting that in this century United States cultural productivity and international market
share has been much greater than that of Europe. The genius of the American system is that
it balances public and private rights in such a way as to provide a rich collective source on
which to base new and valuable productions. This makes us wealthier not only culturally but
in a hard-nosed economic sense as well.
We must ask whether we really wish to remake our cultural industries in the image of
Europe. This is not, in fact, a conflict between Europe and the United States. The real conflict,
in both Europe and the United States, is between the interest of the public in a richer public
domain and the desires of copyright owners (who may or may not be relatives of authors) to
control economic exploitation of the copyright-protected works that remain in their hands. That
Europe has resolved the conflict one way does not mean that we should blindly follow suit.
The arguments for maintaining a rich public domain in the United States are not
diminished by the withdrawal of works from the public domain in Europe, or even by the partial
withdrawal of only "European" works. If Europe protects "its" copyright owners for a life -I-
70 year period, its public domain is reduced, and the European general public suffers a net loss.
The United States public, however, as opposed to individual copyright owners, is not harmed
Written Testimony of Intellectual Property Professors
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307
by the absence of protection in Europe 50 years after the death of a United States author.
Conversely, the public will pay a real cost, both as consumers and as potential creators of new
works, to the extent the public domain is further reduced by the longer protection period.
It should be borne in mind that we are no longer talking about authors, whether European
or American, of the works that would remain protected for the extra 20 years. Those authors
will have been dead for 50 years. We are talking about current authors, however, who create
new and valuable works based on the public domain. If the underlying work is unprotected in
Europe as well as in the United States, those new United States derivative work creators, as
authors, will reap the kind of economic benefits in both jurisdictions for which copyright is
indisputably designed. There is real culmral value in allowing works to become part of the
conunon heritage, so that other creative authors have the chance to build on those conunon
elements.
In this context, therefore, the notion of international "harmonization" simply obfiiscates
the real issue: There is no tension here between Europe and the United States. The tension,
rather, is between the heirs and assignees of copyrights in old works versus the interests of
today's general public in lower prices and a greater supply of new works. Europe has resolved
the tension in favor of the owners of old copyrights. We should rather favor the general public.
ITie Balance of Payments
We have conceded that certain United States copyright owners will receive royalty
payments from European users for a shorter period than will European copyright owners from
European users, if the United States does not follow Europe in extending the copyright term.
It does not follow, however, that this will have any net negative effect on the United States
balance of trade, even in the short term and much less over the longer term.
Increasing the term in the United States means not simply that European users will pay
longer. It also means that United States users will pay longer, and not just to United States
copyright owners but also to owners worldwide. Works that are about to enter the public
domain were created in 1920, and wliile Europeans may take more of our current worlu than
we take of theirs, that is not necessarily true of works from the 1920's and 1930's. Our use
of European works of classical music and plays as well as art works' from this era may outweigh
the use Europeans make of United States works from the same period. Short term balance-of-
trade analysis therefore requires an investigation of whether our use of such works that would
remain protected under the proposed extension would cost more than we would receive in return.
Moreover, a shorter term of protection in the United States will encourage rather than
discourage the production of new works for worldwide markets. We roust recall that the public
domain is the source of many of our finest and most popular works. The United States market
is itself so large that, with both European and United Sutes works in the public domain here SO
years after the author's death, it alone serves as a strong creation incentive. If the new woric
Written Testimony of Intellectual Property Professors
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308
is based on a United States work that is also unprotected in Europe, that new work should be
a part of the continuing United States export engine in the world market. Even if the new work
is based on a European work that remains under protection in Europe, popularity of the work
in the United States will necessarily result in a license (to use the underlying work) in Europe,
again with a net export gain to the United States.
The argument that United States copyright owners will unfairly "lose" royalty revenues
from Europe is therefore both wrong and incomplete. It is wrong because it is not unfair that
a work enter the public domain 50 years after the death of its author. It is incomplete because
it does not consider that the royalties in question will be paid not just by Europeans but also by
Americans, and not just to United States copyright owners but also to copyright owners
worldwide. Additional revenues to a few owners of old copyrights is not a public benefit
justifying adoption of the legislation, and this remains true even though some part of those
revenues would be paid by Europeans. The extension represents, rather, a heavy public cost,
both in additional royalties paid by the United States public and in the loss of creative new
works that will not be produced because the exclusive rights of copyright remain in full force
on works that cost/benefit analysis would clearly place in the public domain.
CONCLUSION
The proposed legislation extending all copyright terms by 20 years is a bad idea for all
but a few copyright owners. None of the current copyright terms of protection should be
extended.
The undersigned are all university professors who regularly teach or conduct legal
research in the fields of coffy right or intellectual property.
Howard B. Abrams,
University of Detroit Mercy School of Law
Martin J. Adelman
Wayne State University Law School
Howard C. Anawalt
Santa Clara University School of Law
Stephen R. Bamett
University of California at Berkeley School of Law
Margreth Barrett
University of California Hastings College of the Law
Written Testimony of Intellecmal Property Professors
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309
Mary Sarah Bilder
Boston College Law School
Dan L. Burk
Seton Hall School of Law
Amy B. Cohen
Western New England College School of Law
Kenneth D. Crews
Indiana University School of Law - Indianapolis
Robert C. Denicola
University of Nebraska-Lincoln College of Law
Jay Dratler, Jr.
University of Hawaii William S. Richardson School of Law
Rochelle C. Dreyfuss
New York University School of Law
Rebecca Eisenberg
University of Michigan Law School
John G. Fleming
University of California at Berkeley School of Law
Laura N. Gasaway
University of North Carolina School of Law
Dean M. Hashimoto
Boston College Law School
Paul J. Heald
University of Georgia School of Law
Peter A. Jaszi
American University, Washington College of Law
Mary Brandt Jensen
University of Mississippi School of Law
Written Testimony of Intellecnial Property Professors
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310
Beryl R. Jones
Brooklyn Law School
Dennis S. Karjala
Arizona State University College of Law
John A. Kidwell
University of Wisconsin Law School
Edmund W. Kitch
University of Virginia School of Law
Robert A. Kreiss
University of Dayton School of Law
Roberta Rosenthal Kwall
DePaul University College of Law
William M. l^ndes
University of Chicago Law School
David L. Lange
Duke University School of Law
Marshall Leaffer
University of Toledo College of Law
Mark Lemley
University of Texas School of Law
Jessica Litman
Wayne State University Law School
Peter S. Menell
University of California at Berkeley School of Law
Robert L. Oakley
Georgetown University Law Center
Harvey Perhnan
University of Nebraska College of Law
Written Testimony of Intellectual Property Professors
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311
L. Ray Patterson
University of Georgia School of Law
Leo J. Raskind
Brooklyn Law School
David A. Rice
Rutgers-Newark School of Law
Pamela Samuelson
University of Pittsburgh School of Law
David J. Seipp
Boston University School of Law
David E. Shipley
University of Kentucky College of Law
Robert E. Suggs
University of Maryland School of Law
Eugene Volokh
University of California at Los Angeles School of Law
Lloyd L. Weinreb
Harvard University Law School
Sarah K. Wiant
Washington & Lee University School of Law
Alfred C. Yen
Boston College Law School
Diane L. Zimmerman
New York University School of Law
The undersigned is in agreement with the conclusions of this Written Testimony for
substantially the reasons given.
Wendy J. Gordon
Boston University School of Law
Written Testimony of Intellectual Property Professors
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312
Mr. MOORHEAD. Mr. Patry.
STATEMENT OF WILLIAM F. PATRY, PROFESSOR, BENJAMIN N.
CARDOZO COLLEGE OF LAW
Mr. Patry. Mr. Chairman, having sat on the other side of the
dais in the 102d and 103d Congresses, I know how important it is
to be brief at this time of the day, and I shall be.
Your goals in introducing
Mr. CONYERS. Were you in the Congress?
Mr. Patry. I worked for Mr. Hughes as counsel to this sub-
committee.
Mr. Conyers. Oh, I see. OK.
Mr. Patry. H.R. 989 has two laudable goals: first, to create par-
ity between European and U.S. authors, and, second, to assure the
author and his or her heirs of the fair economic benefits derived
from the author's work. Unfortunately, I believe, as currently draft-
ed, H.R. 989 does not achieve either of your worthy objectives;
quite the contrary.
Professor Karjala referred to Mr. Conyers' comments about look-
ing out for the little guy. I had thought Mr Conyers was referring
to jazz musicians in the forties and fifties and sixties who had to
sign rather unfair contracts. On pages 4 through 6 of my written
statement I refer to that situation. That's just the tip of the iceberg
because we all know what it was like then. As an appendix to my
written statement there is a Billboard editorial about this issue.
Unfortunately, this bill as currently drafted doesn't look out for
those musicians at all. Mr. Hoke asked about who the winners and
losers were. Ironically, you can't say that many authors are win-
ners under the bill as introduced. In fact, many of them will only
marginally benefit, some of them not at all, while the disparities
between European authors and U.S. authors will increase, not de-
crease. Why? Because, as currently drafted, the bill grants the 20
years of copyright to the purchasers of the copyright when the au-
thor assigned his rights. The bill doesn't grant these 20 years to
the author or to his family. And, moreover, the bill enforces very
old contracts. In other words. Congress is statutorily enforcing pri-
vate contracts that were written decades ago in the forties and fif-
ties and sixties, very unfair contracts that we all know exist. This
bill enforces those contracts, and it gives the purchasers of those
copyrights the benefit of those old contracts for the 20 years. That's
why I say the bill doesn't achieve the objectives that you set out,
and they're very wonderful objectives.
No one has given you, nor do I think anybody can give you, a
reason why purchasers of copyrights from the forties and fifties
shouldn't be required to sit down at the table and bargain with au-
thors and their families for what the value of the copyright is right
now for those new 20 years. After all, the purchasers of the copy-
right are going to sit down with users and they're going to charge
them what the value is in todays market. The only person who
doesn't get the benefit of today's market is the author, and that's
unusual, to say the least.
The contracts I'm talking about could have been entered into as
long ago as 1920 because there's a 75-year copyright. Think back.
That's the very year commercial radio began. That's before talking
313
movies, before television, cable, videocassettes, audiotape cassettes,
compact disks, computers, and before international markets were
very important.
In Europe, since there's a lot of talk about Europe, European law
doesn't generally permit a contract that was entered into that long
ago to cover technologies that were not in existence at the time.
That's fair. It makes sense. If you sit down, negotiate a contract,
it shouldn't cover technologies that come about 70 years later when
you can't negotiate what the fair market value is, but this bill
doesn't do that. This bill enforces those old contracts, and I think
that what it does, therefore, is to perpetuate a disparity between
U.S. authors and European authors.
There's lots of glowing testimonials such as the one about inter-
national royalties Charlene Barshefsky gave earlier, and that's all
wonderful, and I think it's great and I think that U.S. authors
should get them; and that's important. But what's lost is the fact
that U.S. authors aren't going to get those international royalties
in many cases.
For example, there's the Billboard article about jazz and blues
musicians from the forties and fifties refers to this. Recently, a
number of companies have agreed to reform their contracts for
international royalties. The whole article is in my written state-
ment, so you can read it. The most enlightened of these companies
are going to give these musicians 10 percent of foreign royalties.
Some of them don't give them anj^hing. Some of them give 1 per-
cent. So if we're talking about how great it is to get international
royalties, it's a little unusual when 90 to 99 percent of those royal-
ties are being siphoned off and not given to authors. At least you
have to wonder whether the objectives of the bill are being
achieved.
I don't think that these disparities are limited to foreign royal-
ties. Indeed, there are many musicians who have .been forced to sell
their rights for a small, lump sum payment. Quincy Jones referred
to some of them: Willie Dixon, Muddy Waters. These people had to
sign retroactive work made for hire agreements. Two hundred dol-
lars was all they got. I have statements from record companies
where people like Muddy Waters and Hawlin' Wolf were in debt
$50,000 for recoupable expenses for things like personal betterment
or all sorts of other nonrecording costs. These people never made
it out of the hole.
Some companies the article refers to are reforming those con-
tracts. Certainly not all of them are, and it's a very fair question
to ask, if we're going to be extending copyright for 20 years, do we
really want to extend those kind of contracts? I say no.
Since introduction, there have been a number of groups and indi-
viduals who have written to you asking that the bill be changed so
that the copyright vests automatically in the authors. These in-
clude Branford Marsalis, whom many of you know; the father of
Jimi Hendrix, the National Writers Union, and the Graphic Artists
Guild. These authors make the point much better than I can, of
course, and Quincy Jones made the same one. Their families de-
pend upon their ability to receive royalties for their compositions.
Many of these artists, such as Jimi Hendrix, signed their contracts
in their twenties. Frankie Lymon who with his group the Teen-
314
agers wrote, "Why Do Fools Fall In Love," he was 12 years old
when he signed that contract, and his record company producer got
himself listed as a coauthor of the song, even though he wasn't, so
that he could get 50 percent of the author's share of the publishing
royalties. Mr. Hendrix in his letter wrote to you about how he had
spent years of litigation to try and get the fair economic benefits
of his son's royalties.
The point I'm making is not intended to disparage the music in-
dustry. It's a great industry. I'm not saying that any of these prac-
tices are current practices. Hopefully, they're not; I assume that
they're not, but the past is relevant. It's not beating up on the
music industry. The part is relevant because this bill statutorily
enforces contracts from the forties, fifties, and sixties, and I think
it's a fair question to ask whether you really want to do that.
Mr. Bono at the Pasadena hearing observed that 99 percent of
the songwriters or their families would want their copyright back,
if you asked them. Of course: what songwriter is going to say, "Oh,
no, don't give me that 20 years back; give it to the music publisher.
That contract I wrote in the forties or fifties, sure, it only gave me
$200 or 1 percent of the royalties, but that's OK; I don't need the
money." Mr. Jones referred to many jazz musicians who make a
living off of three or four songs. Well, they're not going to make
much of a living if they have to live off of contracts from the forties
or fifties. Why shouldn't they get the copyright back and to be able
to negotiate what the fair market value is right now?
The Copyright Office in its written statement I think takes a
very similar position. They said, "On balance, it seems that authors
should be the beneficiaries of the longer term." That's what the
Constitution says, by the way. It says Congress has the power to
grant copyright to authors, not to purchasers of copyright: to au-
thors.
Mr. Chairman, I want to note two very important drafting prob-
lems. Even if you decide against vesting the copyright in the au-
thor— and that's my very strong recommendation — ^for works pub-
lished between 1920 and 1933, and for which a termination of
transfer notice hasn't been filed, the way the bill works these peo-
ple can't get their copj^^ight back because their time for terminat-
ing has past. In other words. Congress said in 1976 we're going to
give you an extra 19 years and you can get it back if you ask. Well,
guess what? These authors from 1920 to 1933, who Mr. Lehman
pointed out were from a very important era, they can't get the new
20 years back because the time limits have passed. And that inabil-
ity is deliberate.
At the Pasadena hearing there was a question from Mr. Becerra
about this, and the answer was, "Oh, well, the author would have
terminated if the work is commercially valuable." That's kind of a
silly answer I think because, if the work is commercially valuable
for the publisher, how come it isn't commercially valuable for the
songwriter? Of course it is.
Ms. Peters also referred to the lack of termination notices; there
haven't been very many. Of course, there haven't been many. It's
incredibly complicated. In my written statement, I set out about six
or seven pages of the history of this provision of the law and the
technical details of it. Unfortunately, in our country we haven't
315
been generous to authors. We have set up almost as many obsta-
cles as we possibly can to make sure that authors cannot get the
benefits of all their rights. We can do better than that, and we
should do better. At the very least, we should let people who want
to terminate terminate.
My final point is on Mills Music. This was a 1985 decision from
the Supreme Court that misinterpreted section 304 of the Copy-
right Act and had the result of unfairly depriving authors of many
of their benefits. Former Register of Copyrights Barbara Ringer,
who Mr. Moorhead of course knows very well, authorized me to tell
you that she supports reversing this decision.
In testimony before the Senate on this issue a number of years
ago, she put it very succinctly: "The decision takes money away
from authors and their families and gives it to entrepreneurs who
did not bargain for it, did not expect it, and did nothing to deserve
it." I notice that Register of Copyrights Marybeth Peters also asked
you to examine this. This issue involves a lot of money, and in-
volves a provision that deprives authors right now of what they
should be getting, and if it isn't corrected, that unfairness is going
to be perpetuated for yet another 20 years.
Mr. Chairman, I trust that you'll understand that my comments
are offered in the spirit of constructive suggestions. You have won-
derful intentions in the bill. I think it's an excellent idea to benefit
authors. My only hope is that the bill can be changed so that it can
achieve your very worthy objectives.
Thank you very much.
[The prepared statement of Mr. Patry follows:]
316
PREPARED STATEMENT OF WILLIAM PATRY, PROFESSOR, BENJAMIN N. CARDOZO
College of Law
TABLE OF CONTENTS
Overview
PAGE
2
A Brief Review of Term of Protection 8
in the United States
The 1790 Act
The 1831 Act
The 1909 Act
The 1976 Act
9
9
10
11
How Duration Works in the 1976 Act 20
Terms of Protection 20
Terminations of Transfers 21
Section 304(c) 22
Section 203 ^^
29
H.R. 989 ^^
Proposals for Amendment to H.R. 989 32
Mills Music v. Snyder 33
34
Reciprocity
317
Overview
Mr. Chairman, your intention and that of your cosponsors is
noble: to create parity between European authors and U.S. authors.
I do not believe your intention was to create parity between
European authors and those who merely purchased the copyright from
U.S. authors, leaving U.S. authors empty handed. Unfortunately, as
currently drafted, H.R. 989 does not create parity between U.S.
authors and European authors. Instead, because of drafting that
statutorily enforces decades old contracts, the bill awards the new
20 years of copyright to purchasers of copyright rather than to the
author or his family. These purchasers of copyright neither
bargained for nor paid for the new 20 years.
As I detail below, ^ the history of these old contracts can be
traced back at least to 1919, when lawyers for music publishers
began inserting boilerplate language in contracts with songwriters
claiming that any future extensions of term granted by Congress
would automatically vest in the publisher.^ H.R. 989 has the
effect of statutorily enforcing this 1919 boilerplate language with
See page 16.
^ This practice was candidly noted during 1964 Copyright
Office meetings on revising the 1909 Act by Philip B. Wattenberg:
Since 1919 my firm has represented music publishers,
and during those years we've drawn numerous contracts
under which the renewal contract was assigned to the
publisher. Invariably, these contracts contained the
following language: "If the copyright law of the
United states now in force shall be changed or amended
so as to provide for an extended or longer term of
copyright, then the writer hereby sells, assigns,
transfers, and sets over unto the publisher, its
successors and assigns or designees, all his right,
title, and interest in an to said musical compositions
covered by this agreement, for such extended or longer
term of copyright."
Copyright Law Revision Part 4 : Further Discussions and Comments on
Preliminary Draft for Revised U.S. Copyright Law. 88th Cong. , 2d
Sess. 39 (House Coram. Print 1964) .
That music publishers were able to force writers to sign such
agreements does not mean that music publishers paid for the right
and thus should have the benefit of a term of copyright not even in
existence until decades later.
318
the result that, as in the board game "Monopoly," the copyright
goes right to the publisher without even stopping at the author.
Your laudable goal of parity for U.S. authors has thus been
distorted into an involuntary subsidy for purchasers of copyright.
This subsidy is the difference between the market value of the
copyright in today's market and the market value of the copyright
when the original contract was signed. The subsidy will be paid by
authors and their families, the very people the bill is intended to
help. No one has or can give you a reason why purchasers of
copyright shouldn't be required to sit at the table and bargain
with authors or their families for the value of the new 20 years
copyright in today's market; after all, the copyright is for
exploitation in today's market.
Mr. Chairman, the contracts I'm talking about could have been
written as long ago as 1920, the very year commercial radio began,
at a time before most talking movies, before television, before
cable, before videocassettes, before audio tape cassettes, before
compact discs, before computers, and before foreign markets were
important. While the terms of these old contracts vary even within
industries, some courts have upheld broadly drafted contracts from
the 1920s and 1930s that give the purchaser of the copyright the
right to release the author's work in new technological media not
in existence at the time of the contract, sometimes with no
payment, and always at a rate that does not reflect the current
market conditions.
Most countries throughout the world, including those in
Europe, do not permit assignments of rights in technologies not in
existence at the time the contract was signed. By enforcing these
old contracts, your goal of achieving parity between U.S. authors
and European authors will not be achieved. Instead, a disparity is
being perpetuated.
Moreover, in the past U.S. musicians have received very few
foreign royalties, as revealed in the attached June 10th article in
Billboard magazine. If that's the case now, it will be the case for
the new 20 years. But this problem is hardly limited to foreign
royalties. There are many well-known musicians who were forced to
sell their rights for a one-time small, lump-sum. These musicians
won't receive one penny if H.R. 989 passes.
Since the introduction of H.R. 989, a number of groups and
individuals have had the chance to fully study the bill. They are
writing to you asking that the bill be changed to vest the
copyright automatically in authors. These authors make the point
better than I can: their families depend upon their ability to
receive royalties from their compositions. As Mr. Bono stated at
the Pasadena hearing, many musicians sign contracts when they are
very young, often without legal (or any) representation, without
any knowledge of the copyright law, and with little experience in
319
the music business.
At the Pasadena hearing Mr. Bono made the same point,
observing that songwriters don't have the rights they should
because many of them signed contracts when they were very green
about the music business, whereas music publishers have, as he put
it, "a battalion of lawyers." Although Mr. Bono's comments need no
support, articles in Billboard magazine (reproduced in the appendix
to this statement) , as well as number of biographies or
autobiographies of musicians, statement reinforce his comment. For
example, Willie Dixon, the most famous and prolific of blues
composers, put it this way in his autobiography:
I call it swindling but most people call it smart
business when you take advantage of someone who don't
know no better. I didn't know anything about copyright
laws or anything like that.
I thought I was dealing with honest people and when
you trust someone who's dishonest, you get bitten. The
law can take care of it if you can get enough money and
get a lawyer to get justice. They [Chess Records] felt
like if they could keep you poor enough, you wouldn't
have nothing to fight with and that's the truth. I didn't
have $2 a lot of times to have a copyright paper on a
song sent into Congress.-^
Don Snowden, who collaborated with Willie Dixon on the
autobiography explained how the copyright in the musical
composition dovetailed with record contracts:
[T]he chief bone of contention among Chess artists
concerned the symbiotic relationship with Arc Music,
the label's in-house publishing company formed in 1953.
The Chess brothers were partners in Arc Music with
Gene and Harry Goodman, who ran the publishing company
from New York. Ironically, given the number of claims
that have been filed against Arc Music by black blues
artists, the Goodmans were the brothers of Benny Goodman,
who had effectively broken the color barrier in jazz in
1936 by including pianist Teddy Wilson and later vibes
player Lionel Hampton in his group.
It was common practice for the early independent record
companies to start up their own publishing wings — and
sometimes placing the rights to their songs with the in
^ Willie Dixon, "I Am the Blues" 99-100 (1989) . Like Muddy
Waters, Dixon signed a retroactive work for hire agreement, which
he subsequently got overturned with legal help. In his
autobiography '"he also talks about Chess's practice of putting its
publisher's or other people's names on composer's songs. See id. at
20Q.
320
-house publishing company was a condition of an artist
getting recorded. Label owners could, with a stroke of
the pen, split songwriting credits [and therefore
royalties] by adding names or pseudonyms to the copyright.
The most famous example at Chess was "Maybelline, " credited
to Chuck Berry, rock n'roll deejay Alan Freed and Russ
Fratto, the man who was printing up the record labels for
Chess at the time.^
Chess /Arc Music was hardly alone in this practice; Atlantic
Records was also notorious, and even famous composers such as Duke
Ellington were forced to share authorship credits and royalties
with their music publishers. In his book "Hit Men," Frederic Dannen
stated regarding the independent labels:
The pioneers deserve praise for their foresight
but little for their integrity. Many of them were
crooks. Their victims were usually poor blacks, the
inventors of rock and roll, though whites did not
fare much better. It was a common trick to pay off a
black artist with a Cadillac worth a fraction of what
he was owed. Special mention is due Herman Lubinsky,
owner of Savoy Records in Newark, who recorded a star
lineup of jazz, gospel, and rhythm and blues artists
and paid scarcely a dime in royalties.
Dannen also quotes Hy Weiss, founder of the Old Town record
label, as stating "What were these bums off the street?" and as
defending the practice of giving Cadillacs instead of royalties
with reasoning that evokes the memory of Earl Butz, President
Nixon's one-time Secretary of Agriculture: "So what, that's what
they wanted. You had to have credit to buy the Cadillac."^
Apparently even those songwriters without an appetite for Cadillacs
had no choice but to give up their copyright:
[Levy] saw nothing wrong, for example, in putting his
name on other people's songs so that he could get
writer's as well as publisher's royalties. When Ritchie
Cordell wrote "It's Only Love" for Tommy James and the
Shondells, ... Morris [Levy], [Cordell] said, "gave me
back the demo bent in half and told me if his name wasn't
on it, the song didn't come out."^
* Id. at 185. Freed was indicted in 1960 in a payola scandal
and admitted taking $2,500. See Frederic Dannen, "Hit Men" 43
(1991) .
^ Id. at 49.
^ Id. at 48-49.
321
Bunk Johnson, a pianist and bandleader, is quoted in Dizzy
Gillespie's autobiography "To Be or Not to Bop" (page 298) as
follows:
A lotta guys who weren't keeping up with what was
going on [with copyright law] would get a [recording]
date, so the [record company's] A&R man, or some
fellow, ofay or whatever, would say "O.K., gimme a
riff. You know, just make up a head. We don't need
no music; we're gonna record."
So the cats would record, make up something. And
they're actually creating the music right on the
record date. Now, when it comes out, they wouldn't
completely beat them, but usually the guy, the A&R
man, had his own publishing firm or his buddy's got
one and right away he would stick in all of this
material — because you have recorded it and you didn't
have it protected — and in order for him, he says, to
sava the material, he's put it in a publishing company.
The publishing company would give you one of them jive
contracts, where you'd never get no royalties. So this
was a rip-off.
The music industry's historically poor treatment of jazz,
blues, and popular musicians led to a recent editorial in the June
10, 1995 issue of Billboard magazine, part of which states:'
One of the music industry's best-kept secrets
for decades centered on an ugly period of
economic injustice often perpetrated by owners
of masters and song copyrights against artists
and songwriters who mainly made their way (if
not much of a living) in the R&B and blues fields.
An article accompanying the editorial notes that
Old recording contracts often saddled unrepresented
artists, most of them African-Americans, with
royalty rates as low as 3% of wholesale or 1%
of retail price. Still other artists accepted
no-royalty "buy-outs" of between $50 and $200
per record.
Mr. Chairman, I do not raise these points to disparage the
music industry or to suggest that these represent today's
practices. But this unfortunate past is relevant to H.R. 989,
because as currently drafted, the bill will enforce these very
contracts for another 20 years.
Nor Mr. Chairman, am I saying that all publishers are evil or
'' The entire editorial is attached to this statement.
322
that all contracts are unfair. That's not the case, and some record
companies /publishers are revising old contracts to give artists a
better deal.^ Authors need publishers, and publishers need
authors. I have an excellent, long term relationship with my
publisher, and I am an avid purchaser of both books and sheet
music. I appreciate the efforts publishers undertake to get a work
to market and make it successful, and I agree they should get the
full benefit of their bargain. But I don't agree that contracts
entered into decades ago should govern a situation neither side
bargained for ~ a grant in 1995 of a new term of 20 years
copyright. It is only reasonable and fair to grant the new
copyright to authors, thereby permitting the author (or his heirs)
to sit down in 1995 and say to the purchaser of copyright: "We now
have a new right, how do we fairly negotiate a deal in 1995?"
No one can refute Mr. Bono's observation at the Pasadena
hearing that 99% of songwriters or their faunilies would want the
copyright back if given the chance. It is my understanding that
music publishers may not support a bill that does not give them the
copyright. Indeed, music publishers may also seek to delay the
termination of transfer provision in Section 203 of the 1976 Act
for copyrights assigned on or after 1978. This section says that
the author can get his or her copyright back 35 years after it was
assigned. Music publishers are supposedly seeking to make the
songwriter wait even longer. But there is no connection between
extending the term of copyright and Section 203.
This proposal will place songwriters in a worse position than
they are under today's law. For this reason, the Nashville
Songwriters Association has said that they would rather have no
bill than a bill that includes the music publishers' proposal.
But the unintended negative effects of the bill as drafted
aren't limited to assignments made from 1978 on. For works that
were first published between 1920 and 1933 and for which a
termination of transfer notice under Section 304 of the Act has not
been filed, the author cannot get his copyright back for the new 20
year term, even if he wants to. because the 5 year window for
termination is past. As ASCAP's lawyer testified at the Pasadena
hearing, in response to a question from Mr. Becerra, barring these
authors from getting their copyright back was deliberate. The
reason given was that if the work was valuable, the author would
have already terminated. This response blames the victim. If a work
is commercially valuable for the publisher, it is valuable for the
composer. And, of course, how could a composer have known in 1978
that he was supposed to file a notice with the Copyright Office
because 17 years later Congress was going to grant an additional 20
years copyright?
^ See attached March 4, 1995 Billboard article.
323
Fortunately, the problems with H.R. 989 can be easily fixet
and your good intentions full realized. As discussed more below,
all you need do is either vest the proposed extra 20 years
automatically in the author, either following the approach already
taken in the bill, or, alternatively — and this is my preference -
- by going to a life plus 70 term for all works, regardless of when
published.
A Brief Review of Term of Protection in the United States
In order fully to understand the provisions of H.R. 989, a
brief review of the history of the term of protection in the United
States may be helpful since H.R. 989 reaches back as far as works
first published in 1920.
Article I, section 8, clause 8 of the Constitution empowers
Congress to grant authors the exclusive right to their writings
••for Limited Times," but without any guidance as to what the phrase
means, other than, obviously, not permitting perpetual copyrights.
Congress has not been particularly generous in granting copyright
protection, so the limits of the Constitutional power have never
been tested.
The first U.S. Copyright Act, the Act of 1790,' began the
pattern, only broken 186 years later in the 1976 Act,^° of
measuring copyright from an event other than the author's life.^^
From 1790 to 1908, that event was filing a prepublication title
page of the work either with the clerk of the district court where
the author resided (from 1790 to 1869) or with the Library of
Congress (from 1870 to 1908). From 1909 to 1977, copyright was
measured from the date of first publication of the work.^^
^ Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124.
^° The 1976 Act was effective January 1, 1978.
^^ By contrast, the first French Act, that of 1793, was based
on the life of the author. In 1814, the British went to a term of
28 years plus the remainder of the author's life if he or she was
alive at the end of the 28 year period. 53 Geo. Ill, ch. 156. In
1842, the British switched to a term of 42 years or life of the
author plus 7 years, whichever was longer. 5 & 6 Vict., ch. 45. In
1911, England, as a result of its adherence to the Berne
Convention, went to life plus 50. (The 1908 Berlin Berne Convention
had stated a desire for a life plus 50 term, but that term did not
become a requirement until the 1948 Brussels Convention) .
^^ An exception was provided for so-called "Section 12" works:
unpublished works that were typically performed and not sold in
copies, such as motion pictures and speeches. Although the statute'
324
Beginning in 1978, the basic term was switched to life of the
author plus 50 years. ^^
The 1790 Act
The term set forth in the 1790 Act (like much of that Act) was
derived from the 1710 English Statute of Anne:^* an original term
of 14 years from the date the title of a prepublication copy of the
work was filed with the clerk of the United States district
court, ^^ followed by a second renewal term also of 14 years for
the benefit of the author or the author's executor, administrators,
and assigns if the author was alive at the expiration of the first
term and the work was again filed with the district court. If the
author died during the first term, the work fell into the public
domain at the expiration of that term. And if the author lived
until the renewal term, but failed to timely renew, the work also
fell into the public domain. If the author died during the renewal
term (and a timely renewal had been made) rights were owned
according to the author's bequest, or if assigned, according to the
assignment.
The 1831 Act
In 1831, at the request of Noah Webster, Congress doubled the
original term of copyright to 28 years. ^^ The renewal term stayed
did not provide a term for these works, the courts held that the
term was measured from the date of registration with the Copyright
Office.
^^ 17 U.S.C. section 302 (1978). For works created by
corporations the term could not be measured by the life of the
author, and is instead set at either 75 years from the date of
first publication or 100 years from creation, whichever occurs
first.
^* 8 Anne c. 19 (1710).
^^ Interestingly, the Statute of Anne and all of the colonial
statutes, as well as the Continental Congress's May 2, 1783
resolution urging the states to adopt interim copyright laws
measured term from the date of first publication of the work. No
evidence has turned up explaining the 1790 Act's departure from
this prior practice.
^^ Act of February 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436;
W. Ellsworth, COPY-RIGHT MANUAL 21-22 (1882). Ellsworth was
Webster's son in-law, and a member of the House of Representatives
at the time of this Act (including the Judiciary Committee, upon
whose behalf he reported out the bill) , 52 ANNALS OF CONGRESS,
Appendix cxix, 21st Cong. (Dec. 17, 1830) (Gale & Seaton's Register
325
10
at 14 years. This Act also changed the prior law so that the work
did not go into the public domain if the author died during the
original term, and limited the renewal right to the author's
surviving spouse and children, eliminating executors,
administrators, and assignees. The intent of these changes appears
to have been to prohibit the author from making a binding inter
vivos transfer of both the original and renewal term, and to
prohibit the author from conveying the renewal term to anyone other
than his family.
The 1909 Act
In the 1909 general revision. Congress doubled the renewal
term, so that both the renewal term and the original term were 28
years, for a possible total of 56 years. ("Possible" because if a
timely, proper renewal was not filed in the final year of the
original term, the work went into the public domain after only 28
years) . At the same time, the term was switched from the date of
filing a prepublication title with the Library of Congress to the
date of first publication. Congress had come very close to adopting
a term of life of the author plus a fixed number of years, but at
the last minute switched to the 28+28 structure, perhaps swayed by
Mark Twain's testimony that he had only made money off of Innocents
Abroad because he had retained the copyright in the renewal
termT^ The House Patent Committee^® report accompanying the
1909 Act explains that it believed it was
"distinctly to the advantage of the author to
preserve the renewal period. It not infrequently
happens that the author sells his copyright outright
to a publisher for a comparatively small sum. If the
work proves to be a great success and lives beyond
the term of twenty-eight years, your committee felt
that it should be the exclusive right of the author
to take the renewal term... . ^^
This passage also indicates Congress's intent that the author
should not be able to assign the renewal term until that term
of Debates in Congress)
^^ If true, this is ironic since Twain had testified in favor
of the life plus a fixed term bill, adding that he wished copyright
could be perpetual. See Arguments Before the Committees on Patents
on S. 6330 and H.R. 19853. 59th Cong., 1st Sess. 116-121 (1906).
^® At this time the Patent Committee, rather than Judiciary,
had primary jurisdiction over intellectual property.
^^ H.R. REP. NO. 2222, 60th Cong., 2d Sess. 14 91909).
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11
vested. This has been the consistent view of the Copyright
Office. 2° Nevertheless, in Fred Fisher Music Publishing Co. v. M.
Witmark & Sons.^^ the Supreme Court, openly rewriting the
Copyright Act,'^'^ held that an assignment of the renewal term, made
by the author dxiring the original term was binding. In Miller Music
Corp. V. Charles N. Daniels. Inc..^^ the Court tempered the Fred
Fisher holding slightly, by holding that where the author died
before the renewal term the assignment of the renewal term, as a
contingent interest, failed and the author's statutory successors
took the renewal term free and clear of all assignments made during
the original term.
The 1976 Act
Efforts at revising the 1909 Act began in 1955 with a
comprehensive way with a series of 36 issue studies by the
Copyright Office. In 1961, Register of Copyrights Abraham
Kaminstein issued a report to Congress containing the Office's
preliminary conclusions and recommendations about what a revised
law should contain.^* The Register recommended that for works
created after the new law went into effect, the copyright should
last for an initial term of 28 years from the first public
dissemination of the work,^^ and that at any time during the last
5 years of this initial term, any person claiming an interest in
the copyright could file a renewal application, which would then
^° See COPYRIGHT LAW REVISION: REPORT OF THE REGISTER OF
COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 87th
Cong., 1st Sess. 53 (House Comm. Print 1961).
21
318 U.S. 643 (1943)
^^ See 318 U.S. at 647, "if we look only to what the Act says,
there can be no doubt as to the answer," the answer being the
opposite of what the Court held.
23 362 U.S. 373 (1960). In Stewart v. Abend. 495 U.S. 207
(1990) , the Court applied Miller Music to cases involving
derivative works prepared during the original term, overruling
Rohauer v. Killiam Shows, Inc., 551 F.2d 484 (2d Cir.), cert.
denied. 431 U.S. 949 (1977).
2* This report was published by the House Judiciary Committee,
Copyright Law Revision; Report of the Register of Copyrights on the
General Revision of the U.S. Copyright Law. 87th Cong., 1st Sess.
(House Comm. Print 1961) .
2^ This differed from the 1909 Act, which measured term from
the date of first publication.
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12
extend the copyright for 48 years, for a total of 76 years. ^^
Despite this somewhat more liberal approach,^' as under the 1909
Act, failure to renew would throw the work into the public domain.
For works that had already been published at the tine the new
law went into effect, the copyrights would be extended for the same
period of time.^° The Register also expressed the view that due
to the above-mentioned Supreme Court decisions, Congress's intent
in giving the renewal term to authors or their heirs had been
thwarted.^' To cure this problem, the Register proposed that there
be a 20-year limit on any assignment of copyright, or at least
those assignments that did not provide for continuing royalties, so
that authors or their heirs would be "in a position to bargain for
remuneration on the basis of the [then present] economic value of
their works. "^° This same concern animates my earlier remarks that
the current version of H.R. 989 unintentionally deprives authors
and their feunilies from bargaining for the current value of the
work.
In meetings with industry groups and others interested in the
revision, the Copyright Office heard considerable criticism of its
proposals, ^^ with the Register later describing the termination
^^ Id. at 56. The 76 year period came about as a result of a
study of 673 authors of English-language books who died between
1930 and 1955, a survey of 61 composers of "serious" music, and a
survey of 191 authors of popular music who died between 1930 and
1950. This data showed that the average age at median between the
first and last work was 48 years and the average age at death was
68 years, for a span of 2 0 years. Based on these figures, the
Register assumed that a term of 7 0 years from first publication
would approximate the life plus 50 term. But because life
expectancies were rising, a slightly longer term of 76 years was
proposed .
^' Under the 1909 Act, there was only one proper renewal
claimant and the renewal application had to be filed within the
final year of the first 28 year period of protection.
^° I do not discuss the separate issue of the treatment of
unpublished works. I understand that the Copyright Office is
addressing this issue in its statement.
30
Register's 1961 Report at 53-54,
Id. at 93.
See Copyright Law Revision Part 2: Discussions and Comments
on the Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law. 88th Cong., 1st Sess. (House Comm. Print
1963) .
328
13
of transfer provisions as "the most explosive and difficult issue"
in the revision drafting. ^^ Some criticized the Office's failure
to propose a term of life of the author plus 50 years, ■'^ while
publishers and motion picture companies criticized the author's
proposed ability to terminate an assignment after 20 years. ^*
Authors' groups and some scholars, such as Melville Nimmer,
supported the termination right, •'^ with some arguing it should
apply to all assignments (i.e., regardless of whether there was a
continuing obligation to pay royalties) .
In 1963, the Copyright Office circulated a preliminary draft
bill.^^ As a result of the Office's abandonment of its earlier
proposal that copyright vest upon first public dissemination in
favor of copyright vesting automatically upon creation and
fixation, alternative approaches to term were offered in Sections
20 and 22. Section 20 covered works created after the effective
date of the new law. Section 22 covered works created before the
effective date of the new law. Alternative A in Section 20 provided
for a term of 75 years from publication or 100 years from creation,
whichever occurred first. Alternative B provided for a term of life
of the author plus 50 years. Section 22(b) extended the renewal
term for 47 years for a total of 75 years, a period that was viewed
as roughly equivalent on an actuarial basis to life plus 50.
This extra 19 years (28+19=47) was subject to an important right,
in Section 22(c) , of the author to terminate the transfer beginning
in the first year of the extra 19 years (year 57 of the
^^ Copyright Law Revision Part 6: Supplementary Report of the
Register of Copyrights on the General Revision of the U.S.
Copyright Law; 1965 Revision Bill. 89th Cong., 1st Sess. 71 (House
Comm. Print 1965) .
^^ Id. at 77-107, 229, 235-237, 247, 252-254, 376-377. But see
id. at 263-267, 279, 299-300, 353-356, 370, 375-376, 382-383, 413.
^* Id. at 104, 108, 230, 353, 357-358, 360-362.
^^ Id. at 238-239, 248, 258-259, 317, 370, 374, 379, 385, 392-
393, 415
^^ Copyright Law Revision Part 3; Preliminary Draft for
Revised U.S. Copyright Law and Discussions and Comments on the
Draft (Sept. 1964).
^^ See Copyright Law Revision Part 4; Further Discussions and
Comments on Preliminary Draft for Revised U.S. Copyright Law. 88th
Cong., 2d Sess. 17 (House Comm. Print 1964).
329
14
copyright) .^^
With respect to terminations of transfer of works created
after the effective date of the new law (as well as transfers
executed after that date) , the Office offered two alternatives in
Section 16. Alternative A contained an inalienable 20 year limit on
transfers. Alternative B permitted authors or their successors to
bring suit to recover strikingly disproportionate profits received
by the assignee beginning 20 years after the transfer.
For both termination of transfers of "old" and "new" works,
the draft provided that a licensed derivative work prepared before
termination could continue to be exploited according to the terms
of the license after termination, but no new derivative works could
be created. This right was particularly important to motion picture
companies and encyclopedia publishers, whose works frequently
included multiple contributions.
In Copyright Office meetings on the draft, then Chief of the
Examining Division Barbara Ringer, in discussing Section 16 stated
that the section had proved to be quite controversial, with strong
opposition. ^^ At the same time, though, she added a belief that
the support for "the basic principle [that] some sort of time
limitation on transfers of copyright ownership may be as strong and
deep-seated as the opposition."*
Opposition to the section was voiced by the motion picture
industry*^ and the book publishers*^ who argued that contractual
^^ A written notice of termination had to be served on the
transferee six months before the termination became effective, and
had to be recorded in the Copyright Office. Unlike the bill passed
in 1976, there was, though, no "window" within which the notice had
to be served.
^' Copyright Law Revision Part 3 at 277. .
*° Id. See also id. at 277-278, explaining various positions.
^^ Id. at 278-281, 288-289. Motion picture companies favorably
remarked on a provision that permitted the owner of a derivative
work (such as a motion picture version of a novel) prepared under
the authorization of a transfer to continue to exploit the
derivative work after termination, but believed that even in cases
of non-derivative works (as in a screenplay) , they should be able
to continue to exploit the work on a non-exclusive basis after
termination. Copvriaht Law Revision Part 4; Further Discussions and
Comments on Preliminary Draft for Revised U.S. Copyright Law. 88th
Cong., 2d Sess. 40 (House Coram. Print 1964). Although this proposal
appears reasonable, in many cases (particularly with motion
pictures) , a non-exclusive licensee who continues to exploit the
330
15
freedom and investment should be respected, as well as music
publishers, who argued that the potential value of many
compositions is not ascertainable until years after the work is
published.*^ Authors groups "ardently" supported a termination (or
as it was also called, a reversion) right.*'*
Authors offered a number of defenses. First, a single, unified
term of protection (whether 75/100 years or life of the author plus
50 years) , would place authors in a worse condition than the
existing law unless a termination right was provided,*^ since
under the existing law contracts for both the original and renewal
term were not supposed to be enforceable, and even though the
Supreme Court had thwarted Congress's intent in this respect in the
Fred Fisher opinion,*^ if the author died before the renewal term,
his heirs nevertheless got the copyright back free and clear of all
assignments. Second, the only reason authors sign away their
copyrights for long periods of time is the unequal bargaining
position they find themselves in in negotiating with publishers.
And finally, "the basic terms of a book contract are the seune
wherever you go," including a requirement that the author assign
both the original and renewal term.*' This conclusion was
supported by a reputed statement from a book publisher that, "I
have never in my entire publishing experience accepted a grant of
rights to publish a book for only one term. I hope I never have to.
I know of no other publisher who has ever accepted a grant of only
a single term. We all accept grants of only the original and
renewal terms, "*^
It was argued that authors, not publishers, should benefit
from any extension of term (beyond the then-granted 56 years) for
subsisting copyrights because publishers had only bargained and
work may, as a practical matter, preclude the author from marketing
the work to anyone else,
*2 Id. at 281-283, 290-292, 300, 341-343.
^^ id, at 283.
** Id, at 286-287, 293-295, 296-197.
^^ See Copyright Law Revision Part 5; 1964 Revision Bill with
Discussions and Comments. 89th Cong., 1st Sess, 161 (House Comm.
Print 1965) (remarks of Harriet Pilpel) .
*^ See page 11.
*'' Id. at 287.
^® Copyright Law Revision Part 5; 1964 Revision Bill with
Discussions and Comments. 89th Cong., 1st Sess. 155-156 (House
Comm. Print 1965) .
331
16
paid for a 56 year term. The Authors Guild of America declared,
referring to the then existing 28-year renewal term and the
proposed extension of that term by 19 years:
[Book publishers] sit down and carefully estimate
what their 50 percent share of those 28 years of
earnings will be, and they pay a modest portion of
it as an advance.
I don't see how they'd be hurt one iota if they
don't get the next 19 years ... . [T]hey haven't
paid for it or bargained for it. They've simply
computed the value of a 2 8 -year annuity, and they've
had a full and fair opportunity to recover that and a
profit as well.^'
Similarly, the American Guild of Authors and Composers stated
that
[Music publishers] aren't bargaining for any more
than 28 years. They're not giving an advance of $15,000
saying, "Well, $13,000 for 28 years and $2,000 if we get
a few more years if [Congress] extend[s] the law." They
are bargaining for 28 years, and they have thrown in the
other wording on the theory that "if we can get it
good; if we can't well then we have lost just a few
words. We haven't lost a single dollar. "^^
This reference to "other wording" was to a previous statement
by an attorney whose firm had been representing music publishers
since 1919, and had inserted the following language in all
contracts with songwriters:
If the copyright law of the United States now in force
shall be changed or amended so as to provide for an
extended or longer term of copyright, then the writer
hereby sells, assigns, transfers, and sets over unto
the publisher, its successors and assigns or designees,
all his right, title, and interest in. and to said musical
compositions covered by this agreement, for such extended
or longer term of copyright.^
This practice of inserting this clause in contracts was
common. ^^ These are, though, the contracts that H.R. 989 will.
Id. at 43. But see criticism of this characterization of
"advances," id, at 45, and its defense, id.
^° Idj. at 42.
^^ Id. at 39.
^^ See id. at 41, 45.
332
17
unless amended, enforce: contracts dreamed up by lawyers as early
as 1919 (ten years after the 1909 Act) on the off-chance that some
time in the distant future Congress might extend the term, and if
and when that occurred, maybe, just maybe, Congress would let them
get away with boilerplate language assigning publishers all future
rights, even though those rights had not been paid for.
The 1964 Revision Bills
In 1964, the first revision bills were introduced. ^^ Section
20(a) of the bills adopted, for new works, the term of life of the
author plus 50 years, or, where the work was not created by an
individual, 75 years from first publication or 100 years from
creation, whichever occurred first. ^* For old act works, the bills
kept the durational structure of the 1909 Act: an original term of
28 years plus a renewal term of 28 more years (if timely applied
for) , but as in the 1963 preliminary draft, an extra 19 years was
tacked on to the renewal term for a total of 75 years: 28+28+19.
Again, as in the 1963 draft, there were termination of
transfer provisions both for assignments executed before the
effective date of the bills (governing, therefore, the extra 19
years) and for assignments executed after the effective date
(governing, mostly, but not exclusively works with a life of the
author plus 50 years term) .
For assignments of "old act" works, the author or his heirs
could terminate the extra 19 years beginning in the first year of
the extra 19 years (i.e., in year 57 of the copyright) if they had
served a written notice on the assignee one year before the
effective date of the termination and recorded a copy of the notice
with the Copyright Office. ^^ For assignments of "new act" works,
the assignment could be terminated at any time beginning 35 years
after the execution of the assignment, but notice of termination
had to be made two years before the effective date.^^
For both termination of transfers of "old" and "new" works,
the draft provided that a licensed derivative work prepared before
^^ S. 3008, H.R. 11947, H.R. 12354, 88th Cong., 2d Sess,
(1964) .
^^ The bill also provided for a uniform, federal system by
protecting all unpublished works.
^^ As with the 1963 draft, there was no "window" period within
which the notice had to be filed.
^^ For new act (but not old act) transfers, there were
exclusions from the termination right for transfers by will and
works made for hire.
333
18
termination could continue to be exploited according to the terms
of the license after termination, but no new derivative works could
be created.
Discussions on the bills held at the Copyright Office with
private sector groups showed strong opposition to the reversion
(termination of transfer) provisions by book and music
publishers^' and by the motion picture and television industries,
who described the provisions as "at best misguided paternalism."
Authors' groups defended the provisions as essential to preserving
the status quo authors were supposed to enjoy under the 1909 Act
and as protecting authors from the unequal bargaining leverage of
purchasers of copyright. ^° At the same time, authors'
representatives objected to making the author wait 35 years before
a "new act" transfer could be terminated, noting that in his 1960
report to Congress, the Register had indicated the period should be
20 years, and that the 1963 draft bill had set the date at 25
years . *^
The 1965 Bills and House hearings. Register of Copyrights'
1965 Report
The 1965 revision bills^^ retained the 1964 bills' provisions
on duration, but made extensive changes in the termination
provisions that greatly complicated them for authors, thus ensuring
that their utility would be greatly diminished. The changes.
^' See Copvriaht Law Revision Part 5; 1964 Revision Bill with
Discussions and Comments. 89th Cong., 1st Sess. 154-155, 156, 157,
222, 225-226 (House Comm. Print 1965).
The book publishers characterized the provisions as
"intolerable" and stated their "unequivocal opposition to any form
of reversion," claiming that out-of-print clauses vesting the
copyright back in the author if the book remained out of print for
five years adequately protected authors. The out-of-print argument
was plainly ridiculous: publishers were willing to give the
copyright back to the author only when they determined the work no
longer had any commercial value.
^^ Id. at 160, 162, 299-300.
^' See page 11.
^° Id. at 155-156, 157, 158, 162, 163, 240-250, 257 (making
suggestions for amendments) .
^^ Id. at 241.
" S. 3008, H.R. 11947, 89th Cong., 1st Sess. (1965).
334
19
nevertheless, or perhaps predictably, reflected a compromise that
had been worked out.*^ With the exception of amendments made in
1966 clarifying who may terminate and specifying the allocation of
the terminated interests, ^^ the termination provisions in the 1965
bills are identical to those incorporated in the 1976 Act. This
fact is significant because it demonstrates that the parties stuck
with the compromise for eleven years while the revision process
struggled through a number of explosive issues. Indeed, the
compromise has been followed by all the parties until last month,
Jxine 1995, when music publishers at the Pasadena hearing indicated
they would send the Subcommittee a proposed amendment to Section
203 further delaying the 35 year termination period.
The differences between the 1964 and 1965 bills are as
follows: (1) the 1965 bills permitted nonexclusive licenses to be
terminated^^ ; (2) transfers of copyrights in wills were excluded
from the termination right; (3) termination was limited to the
author, or if he was deceased, his widow and children;"* (4) under
Section 203, termination could be made only during a five year
window commencing at the end of 35 years from the execution of the
transfer;^' (5) the termination notice could be served not less
than 2 or more than 10 years before the effective date of the
termination, with recordation made a condition of the
termination ;^° (6) where the author was deceased, the termination
notice had to be filed by all those entitled to terminate;^^ (7)
^^ See Copyright Law Revision: Hearings on H.R. 4347 et al
Before the Subcomm. on Courts. Civil Liberties and the
Administration of Justice of the House Judiciary Comm. . 89th Cong. ,
1st Sess. 148-149 (1965); Mills Music, Inc. v. Snyder, 469 U.S.
153, 17-176 (1985) . The compromise also involved amending the work-
for-hire provisions in publishers' favor.
^'^ See H.R. 4347 as reported by the House Judiciary Committee,
H.R. REP. NO. 2237, 89th Cong., 2d Sess. (Oct. 12, 1966).
^^ The 1964 bills Were limited to exclusive licenses.
^^ The 1964 bills included legal representatives and
legatees.
^' The 1964 bills permitted the termination to be filed at any
time after the 35 years had elapsed.
^° The 1964 bills had the 2 year, but not the 10 year
provision. They also required recordation with the Copyright
Office, but did not state that the failure to record rendered the
termination ineffective.
^' By contrast, the 1964 bills more liberally required only a
"written notice."
335
20
to ensure that the termination right was inalienable and
unwaivable, no agreement to transfer rights after termination would
be valid unless entered into after termination had occurred, with
the exception that a future agreement between the author and the
original transferee would be valid if entered into after the notice
of termination has been filed; (8) the proportionate shares between
the widow and children were specified.
In preparation for the first congressional hearings on the
revision effort, Register of Copyrights Abraham Kaminstein issued
a supplementary report. '° The report traces the origins of the
termination of transfer provisions to the failure of the 1909 Act
to adequately give authors a second bite at the apple.
Although noting the objections of publishers and the motion picture
industry, who asserted that authors are not generally in a poor
bargaining position, the Register concluded that the Copyright
Office "remained committed to the general principle of reversion as
one of the most important elements of the copyright law revision
program."'^
At hearings before the House in 1965, the parties noted their
individual wishes that the bill had been more favorable to them,
but stuck by their compromise on termination, and strongly
supported the life plus 50 term.'-'
How the Term of Protection Provisions in the 1976 Act Work
The 1976 Act's treatment of duration may be divided into three
parts: (1) works created on or after January 1, 1978; (2) works
unpublished and unregistered on January 1, 1978.
Works Created On or After January 1, 1978: Section 302
'° Copyright Law Revision Part 6; Supplementary Report of the
Register of Copyrights on the General Revision of the U.S.
Copyright Law: 1965 Revision Bill. 89th Cong., 1st Sess. (House
Comm. Print 1965) .
''^ Id. at 71-72.
'2 Id. at 72.
'^ See Copyright Law Revision: Hearings on H.R. 4347 Before
Subcomm. No. 3 of the House Judiciary Comm. . 89th Cong., 1st Sess.
82-84, 92-94, 95-96, 1761-1765 (Authors League) ; 129, 142, 147-148
(book publishers); 162-164 (magazine publishers); 228-234, 239,
242-245 (American Guild of Authors & Composers); 251, 255, 257
(magazine photographers); 996-997. 1010, 1035-1037, 1048-1049
(motion picture companies); 1866-1870 (Copyright Office) (1965) .
336
21
For this category of work, the 1976 Act adopted a basic term
of life of the author plus 50 years. Where the work is made for
hire, anonymous, or pseudonymous the term is 75 years from first
publication or 100 years from creation, whichever occurs first.
Works Unpublished and Unregistered on January 1, 1978:
Section 303
This category encompasses works formerly under perpetual state
common law copyright. The 1976 Act preempts that state protection
and substitutes a somewhat complicated system. The minimum term of
protection for these works is December 31, 2002, but if the work is
published before that date, the term is extended until December 31,
2027. Alternatively, if a longer term is possible under the life
plus 50 regime, that regime is applied.
Works Pxiblished Before January 1, 1978
These works were formerly governed by the 1909 Act's 28+28
year term: 28 years from first publication, with another 28 year
renewal term if a timely renewal was filed. The 1976 Act
essentially incorporated the 1909 Act's term structure into the
1976 Act for these works, but added on an additional 19 years to
the renewal term for a possible total of 75 years (28+28+19). Where
a work was in its first term on January 1, 1978, a timely renewal
application still had to be filed.'* If the renewal application
was timely filed, the author was granted a 47 year renewal term. If
the work was in its renewal term on January 1, 1978, it was
automatically granted a 47 year term.
Termination of Transfers
At an August 1964 meeting at the Copyright Office with the
private sector on the first revision bills, an in-house lawyer for
Time, Inc. expressed an opinion that the termination of transfer
provisions would not help authors because they were too complicated
and would instead "realistically" only benefit private sector
attorneys "who are going to make a lot of money out of it."'^ This
comment was made, interestingly, before the provisions became
appreciably more onerous for authors in the 1965 bills. Evidence
being compiled by the Copyright Office for this hearing bears out
the prediction.
'* This requirement was finally abandoned in the Automatic
Renewal Act of 1992, Act of June 26, 1992, Pub. L. No. 102-307
(title I), 102d Cong., 2d Sess., 106 Stat. 264, but that act only
governs works that were first published between 1964 and 1977.
'^ See Copyright Law Revision Part 5: 1964 Revision Bill with
Discussions and Comments. 89th Cong., 1st Sess. 166 (House Comm.
Print 1965) (remarks of E. Gabriel Perle) .
337
22
There are two termination of transfer provisions in the 1976
Act, Sections 203 and Section 304(c). They are very similar, but
not identical. Section 304(c) governs transfers and licenses
executed before January 1, 1978 and thus is limited to 1909 Act
works whose term is measured from the date of first publication.
Section 203 covers transfers and licenses executed on or after
January 1, 1978 and thus covers three categories of works: (1)
works that were subject to common law copyright on January 1, 1978;
(2) works protected under the 1909 Act that were in their first or
renewal term on January 1, 1978, but where the transfer or license
was executed on or after that date; and (3) works created on or
after January 1, 1978, and thus governed by the term structure of
the 1976 Act. The possibility of termination under Section 304(c)
began on January 1, 1978. Terminations under Section 203 cannot
begin until January 1, 2013.
Termination under Section 304(c)
The termination right under Section 304(c) is only for the
extra 19 years added on to the 28 renewal term of the 1909 Act. The
provision is quite complex:
(1) Grants covered
(a) exclusive or nonexclusive transfers or
licenses of renewal rights
(b) executed before January 1, 1978
(c) by a renewal claimant covered by the
second proviso of Section 304(c)
(d) with respect to a work in its first
or renewal term of statutory protection
(2) Persons who may exercise the right
(a) as to grants by author(s):
(i) the author (s) to the extent of the
author's interest (§304 (c) (1) ) ;
(ii) if an author is dead, by owners of more
than one half of the author's termination
interest, such interest being, owned as follows:
(A) by surviving spouse if no children
or grandchildren;
(B) by children and surviving children of
dead child if no surviving spouse, per
stirpes and by majority action; or
(C) shared, one half by widow (er) and one
half by children and deceased child's
children (§304 (c)(1) and (4)).
(b) as to grants by others — all surviving grantors
(§304(c) (1) and (4)).
(3) Effective date of termination
(a) designated time during five year period
commencing on later of:
(i) beginning of fifty-seventh year of copyright or
(ii) January l, 1978 (§304 (c) (3) ) .
338
23
(b) upon 2 — 10 years notice ($304 (c) (4) ) .
(4) Manner of Terminating
(a) written and signed notice by required persons
or agent's to grantee or grantee's "successor
in title"
(b) specification of effective date, within above limits
(c) form, content, and manner of service in accordance
with Copyright Office regulation (§304 (c) (4) (B) ) ;
37 C.F.R. §201.10)''^
(d) recordation with the Copyright Office before
the effective date (§304 (c) (4) (A) )
(5) Effect of termination
(a) of grant by author
(i) reversion to that author, or if dead, those
owning the author's termination interest
(including those who did not join in signing
the termination notice) in proportionate
shares (§304 (c)(6) and (c)(6)(C))
(b) of grant by others — reversion to all entitled
to terminate (§304 (c)(6))
(c) in either case, future rights to revert upon
proper service of notice of termination
(§304) (c) (6) (B)).
(6) Exceptions to termination
(a) works made for hire are not subject to termination
(b) dispositions by will are not subject to termination
'^ These regulations require that the notice be served upon
each "grantee" whose rights are being terminated, or "the grantee's
successor in title," by personal service, or by first-class mail
sent to an address "which, after a reasonable investigation, is
found to be the last known address of the grantee or successor in
title," 37 CFR §201. 10 (d) (1) , The regulation further provides that
"a reasonable investigation" includes but is not limited to a
search of the records in the Copyright Office. Id. §201, 10(d) (3) .
In the case of musical performing rights, a report from a
performing rights society identifying the person (s) claiming
current ownership of the rights being terminated is sufficient. Id.
For a discussion of the term "successors in title," see Burroughs
V. MGM, 491 F. Supp. 1320 (SONY 1980); 519 F. Supp. 388 (SONY
1981), aff 'd. 683 F.2d 610 (2d Cir. 1982). One issue in Burroughs
was the meaning of "successors in title." Is the term limited to
transferees of exclusive rights, or does it also include
nonexclusive licenses? Although the issue was not reached by the
Second Circuit majority. Judge Newman, in a concurring opinion,
reasoned that since the Copyright Office regulations speak of
providing for a reasonable investigation of "ownership," and since
under Section 101 of the Act a "transfer of ownership" includes
assignments and exclusive licenses but excludes nonexclusive
licenses, see 17 USC §101, the term must be construed accordingly.
This reading of "successor in title" is believed to be correct.
339
24
(c) derivative works prepared under a transfer or
licensee executed prior to termination may continue
to be utilized under the terms of the transfer,
but with no right to make new derivative rights
(S304(c)(6)(A))"
(d) rights that arise under any other federal statute or
under any state or foreign law are not affected
(S304(c) (6) (E)).
(7) further grants of terminated rights
(a) each owner is regarded as a tenant in common
except that a further grant by owners of a
particular deceased author's terminated rights
must be in the same number and proportion of
his or her beneficiaries as required to terminate,
but then binds them all, including nonsigners,
as to such rights
(b) must be made after termination, except that, as to
original grantee or successor in title, it may
be after notice of termination.
While there is no form for termination notices. Copyright
Office regulations specify that the notice must contain a "complete
and unambiguous statement of facts . . . without incorporation by
reference of information in other documents or records,"^" and
include the following:
(1) the name of each grantee whose rights
are being terminated and each address
at which service is made;
(2) the title and the name of at least one
author of, and the date copyright was
"" In Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), the
Supreme Court reversed a lower court opinion construing this
provision as granting the author all of the royalties from the
exploitation of the sublicensed derivative works after termination
of the original grant. Under Mills Music, middlemen (transferees
who have granted sublicenses) are entitled to share in the
royalties from the derivative work's continued exploitation
according to the terms of the original contract. See former
Register of Copyrights Barbara Ringer's criticism of Mills Music in
Civil and Criminal Enforcement of the Copvright Laws; hearing
Before the Subcomm. on Patents. Copyrights, and Trademarks of the
Senate Judiciary Comm. . 99th Cong., 1st Sess. 79-95 (1985); and
generally The Copyright Holder Protection Act; Hearings on S. 1634
Before the Subcomm. on Patents. Copyrights, and Trademarks of the
Senate Judiciary Comm. . 99th Cong., 1st Sess. (1985).
'^ 37 CFR S201.10(b) (2) .
340
25
originally secured in, each works to
which the notice applies (including if
available the copyright registration
number) ;
(3) a brief statement reasonably identifying
the grant being terminated;
(4) the effective date of the termination;
(5) the name, actual signature, and address
of the person executing the termination. ''
In the case of works consisting of a series or containing
characters, special care has to be taken to list separately each
and every work in the series or all works in which the character
appears. ° A complete copy of the termination notice must be
recorded with the Copyright Office before its effective date of
termination, and such recordation must be accompanied by a
statement setting forth the date on which the notice of termination
was served and the manner of service (unless the information is
already contained in the notice) ^■'^ and by the prescribed fee.®^
The Section 304(c) termination right is inalienable and
unwaivable,^-' but further grants may be made after termination.
An agreement to make a further grant may be made after the notice
of termination has been given (but before termination is effective)
if that agreement is made between the author or designated
'^ 37 CFR SS201. 10(b) (1) and (c)(1), (4). A duly authorized
agent may also sign the notice but care should be taken to clearly
identify the person(s) on whose behalf the agent is acting. 37 CFR
§201. 10(c) (3) .
^° See Burroughs v. MGM, 491 F. Supp. 1320 (SONY 1980); 519 F.
Supp. 388 (SONY 1981), aff 'd. 683 F.2d 610 (2d Cir. 1982) (a notice
of termination listing 35 titles (including the first "Tarzan"
story) , but omitting five sequels in which the character Tarzan
appeared, was found to be ineffective in preventing the grantee's
continued use of the Tarzan character). Cf. Judge Newman's
concurring opinion, in which although agreeing in the result, he
disagreed on the effect of not terminating the five sequels,
reasoning that the right to base a motion picture on those sequels
would permit uses not derived from the sequels.
^^ 37 CFR §201. 10(f) (i) , (ii) .
^^ 37 CFR §201. 10(f) (2) .
" 17 use §304 (c)(5): "Termination of the grant may be
effected notwithstanding any agreement to the contrary, including
an agreement to make a will or to make any future grant."
341
26
Statutory successors and the original grantee.^* This provision,
erroneously described sometimes as a "right of first refusal," does
not give the original grantee a right to conclude such an
agreement; it only means that if such an agreement is made, it will
be enforceable.^^
Termination Under Section 203
Section 203 's provisions are similar but not identical to
Section 304(c), but are equally complex:
(1) Grants covered
(a) exclusive or nonexclusive transfers
or licenses
(b) executed on or after January 1, 1978
(c) by an author
(d) as to any work
(i) created before or after January 1, 1978;
(ii) subject to common law copyright ($303);
(iii)in first-term copyright (§304 (a));
(iv) in renewal term (§304 (b))
(2) Persons who may exercise right
(a) the author or a majority of the authors
who exercised it (§203 (a) (1) ) ;
(b) if the author is dead, his or her right
may be exercised by (or if the author was a
joint author, the author's interest may be
"voted" by) majority action of the owners of
more than one half of author's termination
interest, such interest being owned as follows:
(i) by surviving spouse (if no children
or grandchildren)
(ii) by children and surviving children of
deceased child (if no surviving spouse)
per stirpes and by majority action or
(iii) shared, one half by widow and one
half by children and deceased child's
children.
(3) Effective date of termination (§203(aJ(3))
(a) designated time during 36th through 40th
year after grant or
(b) if grant covers right of publication,
designated time during five year period
beginning on the earlier of the following
dates :
(i) 35 years after publication
(ii) 40 years after grant.
^^ 17 use §304(C) (6) (D) (1978) .
®^ Bourne v. MPL Communications, 675 F. Supp. 859 (SONY 1987),
678 F. Supp. 70 (SONY 1987).
342
27
(4) Manner of terminating
(a) written and signed notice by required
persons to "grantee or grantee's successor
in title" (§203 (a) (4))
(b) specification of effective date, within
above limits (§203 (a) (3))
(c) form, content, and manner of service in
accordance with Copyright Office regulations
(S203(a) (4) (B) ; 37 CFR §201.10)
(d) recordation in Copyright Office before
effective date (S203 (a) (4) (A)
(5) Effect of termination
reversion to author, authors, or others owning
author's termination interest (including those
who did not join in signing termination notice)
in proportionate shares (§203 (b)).
(6) Exceptions to termination
(a) work made for hire are not subject to termination;
(b) dispositions made by will are not subject to
termination ; °^
(c) derivative works prepared under a transfer or
license executed prior to termination may continue to be
utilized, but with no right to make a new derivative
work (§203 (b) (1)
(d) rights that arise under other federal statute or
under any state or foreign law are not affected
(§203(b) (5)).
(7) Further grants of terminated rights (§203(b)(3))
(a) must be made by same number and proportion of
owners required for termination, then binds all
(§203(b) (3))
(b) must be made after termination, except, as to
original grantee or successor in title, may be made
after notice of termination (§203 (b) (4) ) .
The key distinctions between termination rights under Section
304(c) and 203 may be summarized as follows:
Section 304(c) Section 203
Grants covered
Before January 1, 1978 On or after January 1, 1978
®^ See Larry Spier, Inc. v. Bourne Co., 953 F.2d 774 (2d Cir.
1992) for a discussion of this provision.
343
By author or other "second
proviso" renewal beneficiary
Of renewal right in
statutory copyright
28
By author^"'
Of any right under copyright
Author or majority of granting
authors or majority of their
respective beneficiaries, voting
as a unit for each author and
per stirpes
Persons who mav exercise
Author or majority interest
of statutory beneficiaries
(per stirpes) to the extent
of that author's share; or
In case of grant by others,
all surviving grantors
Beginning of five-vear
termination period
End of 56 years of copyright End of 35 years from grant of, if
or January 1, 1978, covering publication right, either
whichever is later 35 years from publication or 40 years
from grant, whichever is earlier
Further grants
Grantors are generally
tenants in common with
right to deal separately,
except where dead author ' s
rights are shared, then
majority action (per
stirpes) as to that
author's share
Requires same number and proportion
as required for termination
^' The reason for limiting the Section 203 termination right
to the author was explained as follows in the Register of
Copyrights' 1965 report, "as a result of the present renewal
provisions, a large number of binding transfers and licenses
covering renewal rights have been executed by the author's widow,
children, and other statutory beneficiaries, as well as the author
himself. We believe that, for example, where the author's widow was
the proper renewal claimant but had previously executed a transfer
of her renewal rights, she should be able to gain the extended term
after the present 28-year renewal period is over." SUPPLEMENTARY
REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE
U.S. COPYRIGHT LAW: 1965 REVISION BILL, 89th Cong., 1st Sess. 96
(House Comm. Print 1965} .
344
29
Section 203 also poses the following conundrum in its
interrelation with Section 304(a). Works first copyrighted as late
as 1977 enjoy both a termination right and a renewal right. If the
author's renewal contingency does not vest, there may be no
termination right at all, since post-1977 grants by other renewal
beneficiaries are not terminable under Section 203. Moreover,
suppose a grant is made in 1978 by an author who later decides to
terminate at the earliest possible moment. To exercise the 35-year
teinnination right in 2013, the author may give notice 10 years
earlier, in 2003. Although Section 203 provided (as does section
304(c)) that the future rights to be terminated "vest" upon service
of such notice, the renewal provision still must be taken into
account, since 2003 is only the 25th year of the first term
copyright. If the author dies shortly after service of the
termination notice and the author's widow(er) renews two years
later, what is the effect of the author's termination notice?®^
The astonishing complexity of these provisions eunply
demonstrates why they have not served their purpose of permitting
authors and their families to get a second bite at the apple,
despite Congress's 86 year effort to do so. There is no reason to
perpetuate such an obviously flawed system. The solution is simple,
obvious, and effective: vest the proposed new 20 years directly in
the author or his heirs,
H.R. 989
H.R. 989 seeks to extend the term of copyright protection by
adding on an extra 20 years for both "old act" and "new act" works.
New act works by individuals will go to life of the author plus 70
years. New act works that are made for hire, anonymous, and
pseudonymous works and old act works will go to a term of 95 years
from first publication, or 120 years from creation, whichever
occurs first. The basic rationale for this increase is the
reciprocal nature of the European Union's 1993 term directive.
In order to harmonize the various laws of its member countries
toward the goal of a single market without (internal) trade
barriers, the European Union ("EU") has issued a number of
directives establishing a single law for all EU countries.®^ Some
of these directives have been in the field of intellectual
property, including copyright. In the case of term of copyright
protection, most EU countries have a term of life of the author
°® See Dreben, Section 203 and a Call for a Hurried Review.
THE COPYRIGHT ACT OF 1976: DEALING WITH THE NEW REALITIES 229,
232-233 (N.J. Copr. Soc'y 1977).
®^ The directives are not self -executing: they must be
implemented by domestic legislation in each country.
345
30
plus 50 years, the 50 years being intended to benefit the author's
children and grandchildren. A few EU countries, however, have a
term of copyright longer than life plus 50, at least for certain
categories of works, such as musical compositions. Given these
differences in term, the EU had three choices: (1) do nothing,
allowing different terms; (2) issue a directive requiring all
member countries to follow the predominant life plus 50 term (also
found in the Berne Convention and in the GATT agreement); or, (3)
issue a directive requiring all member countries to adopt the
higher term found in the minority number of countries.
The first option was clearly undesirable because it would
perpetuate the very sort of inconsistencies that directives are
intended to eliminate. The second option was also believed
undesirable because it would take away protection from authors in
countries that granted a term longer than life plus 50.'°
Accordingly, the third option, harmonizing the term of protection
up was chosen. The EU's October 29, 1993 directive on the term of
copyright thus establishes a basic term of copyright of life of the
author plus 70 years. The directive is to be implemented by EU
member countries by July 1, 1995. However, like past EU Directives,
most member countries will take years after that date to actually
implement the directive. France has yet to implement the 1991
computer program directive. Few countries have implemented the term
directive, and thus internationally, there is no reason
precipitously to pass a bill this session of Congress.
with respect to the question of the term granted works by
authors from non-EU countries. Article 7 of the directive
essentially states that works from non-EU countries, such as the
United States, will be given in the EU the term of protection
granted by the non-EU country, and not the term granted by the EU.
Thus, if the United States grants a term of life of the author plus
50 years, works of U.S. authors will receive that term in the EU
and not the life plus 70 term EU authors enjoy. On the other hand,
if the United States grants a term of life of the author plus 70
years, works of U.S. authors will receive that term in the EU.
Music publishers, the estates of music composers who published
songs in the 1920s and 1930s, and others have argued that U.S. law
needs to be changed so that they may take advantage of this extra
20 years protection in the EU. My concern is not so much with going
to a life plus 70 term (aside from the music publishers' Section
203 proposal) , but with how, for old act works, authors can be
See Preface to the Directive, paragraph (9) : "Vfhereas due
regard for established rights is one of the general principles of
law protected by the Community legal order; whereas, therefore, a
harmonization of the terms of protection of copyright and related
rights cannot have the effect of reducing the protection currently
enjoyed by rightsholders in the Community... ."
346
31
better protected than they currently are in H.R. 989,
As discussed above, the basic term of copyright in the United
States for works created before January 1, 1978 is 75 years from
the date of first publication, but it is important to realize that
this 75 years is not an undifferentiated period, but is instead an
aggregation of 28+28+19 years, with the 19 years having been added
by the 1976 Act. Congress, in drafting the 1976 Act, considered
converting, retroactively, the 1909 Act's cumbersome 28+28 term to
a term of life plus 50 years, but declined to do so because of the
argvunent that this would be unfair to transferees who had purchased
both the original and renewal copyright terms by assignment from
authors: switching to a life plus 50 term for these already
assigned works would, it was said, would deprive them of their
bargain, i.e., to exploit the work without the author's further
permission during the "full term" of copyright, which was at that
time 56 years. As a result, for "old act" works (works published
before January 1, 1978), the 1976 Act continued the 1909 Act's
structure of measuring the term of protection from publication,
rather retroactively providing them a life plus 50 term. See
Section 304 of the 1976 Act.
In my opinion, the failure to convert to a life plus 50 term
for old act works was a mistake and confused two different issues:
the first being how to measure the term of protection, the second
being the need to honor a transferee's contract to exploit a work
for a maximum of 56 years. This unfortunate decision has caused
U.S. trade negotiators innumerable difficulties overseas as they
attempt to persuade foreign countries that we want them to give our
works — old and new — a life plus 50 term, even though we don't
give our works (or theirs) that term in the case of old act works.
The trade negotiators gamely argue that 75 years from first
publication is the actuarial equivalent of life plus 50 years, but
this is met with skepticism, skepticism that was eminently
justified before the end of 1992 since before that date if a proper
renewal application was not filed, the author would only get a 28
year term. I have heard that some foreign countries are refusing,
in their GATT retroactivity legislation, to give U.S. works a life
plus 50 term, and instead are proposing to give them as little as
20 years based on our failure to give their pre-1978 works a term
of life plus 50. At the end of my statement, I outline an amendment
in the nature of a substitute to H.R. 989 that would take care of
this problem by going to a life plus 70 term for pre-1978 works,
yet would still honor transferees' contracts.
There are, of course, some authors such as those in the
Ansong group, who will benefit domestically and internationally
from H.R, 989 as currently drafted because they can afford to
employ a lawyer to timely file termination notices. But there also
are a significant number of authors under H.R. 989 as currently
drafted who will not fully benefit because they cannot terminate
347
32
transfers for the 20 years granted under the bill. For these
authors, the extended copyright granted in the bill will
irrevocably vest in a transferee, even though the transferee did
not bargain for the extra term. In fact, all the transferee ever
bargained for was a copyright term of 56 years.
Here's why this will occvir. There is no special termination of
transfer right for the new 20 years granted old act works in H.R.
989. Instead, the bill will apply the existing termination right in
Section 304, or will it? Because the time limits for termination
have not been emended, for works first published between 1920 and
1933 (coincidentally important years for the Amsong group) , the
five-year window for termination has already passed. These authors
or their children can't terminate even if they want to. And with
each successive year, authors or their children will lose the
ability to terminate for another year's works: in 1996, authors and
their children will no longer be able to terminate for works first
published in 1934.
This manifest unfairness can be prevented by vesting the extra
20 years solely and directly in the author or his or her heirs.
Purchasers of copyright can then renegotiate contracts and pay for
the real value of the extra 20 years, rather than reaping the
wholly undeserved windfall of a contract negotiated 75 years ago.
This can be done either by amending the bill to simply vest the
extra 20 years in the author, or, by going to a term of life plus
70 for these old act works (as well as for new act works of
course) . What follows is my life plus 70 proposal.
Proposal for a Term of Life Plus 70 for All Works
There are a number of ways to eunend the bill to protect
authors. One way would be to convert to a term of life of the
author plus 70 years (if the decision is made to extend the term)
for old Act works, while still preserving the ability of the
publisher to exploit the work according to the telrm of the original
contract. This should also include the 1976 Act's extra 19 year
term for works for which the author had to terminate the transfer
between 1978 and 1995, thereby not disadvantaging transferees. (The
author would still have the right to terminate where currently
available) . This would, importantly, accomplish other objectives:
it would prevent authors from outliving their copyrights, it would
give the new 20 years to authors, it would harmonize U.S. law with
EU law, and it would help our trade negotiators get a term of at
least life plus 50 in foreign countries' GATT retroactivity
provisions.
Here's how the proposal would work in practice. Assume in
1920, an author transferred his rights in both the original and
renewal terms to a publisher. The publisher published the author's
348
33
book in 1920. The author died in 1950.'^ The work was renewed in
1948. Under the current regime, the copyright lasts for 75 years,
expiring in 1995. Under a life plus 50 regime, the copyright would
expire in 2000; under life plus 70 in 2020.
The original contract between the author and publisher for the
56 year tei-m granted in the 1909 act, as well as the 19 years added
in the 1976 act, would be honored in the proposal, meaning that the
publisher would receive the full benefit of its contract for 75
years — until 1995. In 1996, the copyright would vest
automatically in the author's heirs for the duration of the
copyright — 202 0 under the life plus 70 year regime. The author's
heirs would thus be free to negotiate a contract for the remaining
25 years on the copyright.
This approach would give to purchasers of copyright the full
benefit of what they had bargained for with the author, plus the
windfall they received in 1976. At the same time, it would place
U.S. law in harmony with the rest of the world and would give to
the author or the author's heirs the benefit of any extension of
term consistent with Congress's power to grant copyright to benefit
authors.
Mills Music V. Snvder
The 19 year termination right for old act works granted in
Section 304 of the 1976 Act contained an exception for derivative
works created under a grant from the author or transferee before
termination. This exception permitted, for example, a record
company that had licensed from a music publisher (which had itself
been licensed by the composer) the right to make a record of a
musical composition to continue to sell the.- records after
termination, provided, of course, it continued to pay the
previously agreed to royalties. These derivative royalties were,
however, to go 100% to the author after termination. In Mills Music
V. Snvder. ^^ the Supreme Court, in a 5-4 opinion held that the
author does not get 100% of the royalties but has to share them
with the music publisher according to the terms of the original
^^ Because in a number of cases, a 75 year term provides a
longer term than life plus 50 regime — in the hypo given in the
text if the author died before 1945 — there will need to be a
transitional section continuing copyrights presently protected by
virtue of existing 75 year term, otherwise the result would be to
place into the public domain works that are currently protected. An
alternative to a transitional section would be to provide an
"either/or" way of measuring term as in current section 303. Under
such an alternative, the author or the author's heirs would receive
the longest term possible — either under a life plus 70 or under
the current law.
'2 469 U.S. 153 (1985) .
349
34
contract.
The Copyright Office, which had drafted the section in
question, passionately argued that the Supreme Court was wrong and
had cheated songwriters out of an important part of the 1976 Act
deal. A bill was introduced by Mr. Berman to overturn this
erroneous decision, but it was not passed. H.R. 989, which is being
pushed by music publishers, should correct Mills Music by requiring
that the author receive 100% of the royalties. Music publishers
should not reap the unfair advantage of Mills Music for yet another
20 year term extension. Failure to reverse Mills Music will
compound the injustice by depriving authors of the derivative
royalties Congress intended them to have during the new 20 years.
Reciprocity
H.R. 989 is not reciprocal; that is, it grants a term of life
of the author plus 70 years to works of foreign authors without
requiring the foreign country to grant U.S. authors the same term.
Thus, Japanese authors would enjoy a term of life of the author
plus 70 years in the United States, while U.S. authors would only
get life of the author plus 50 years in Japan. If the motivating
force behind H.R. 989 is the reciprocal provisions of the EU term
directive, it is perplexing that H.R. 989 is not reciprocal too.
Reciprocal protection beyond life plus 50 is, moreover, consistent
with — even required by — Article 7(8) of the Berne Convention.
Thank you for the opportunity to testify, Mr. Chairman.
9.^-9R7 QR _ 1 9
350
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for Europe to i
Kecordv a label o
EMI u>n*t ini*re«ted in N evert helea.*.
we are talkinfr about putting out a fv^
thou«*nri ropie* of mart uUee. so the II-
cenne fee* are not huge "
negotiaied long before i\
lo hire manairm ami tl
martietplaH- wv thuuirl
i^«-ianHbep.n
• inUTTWtJorwI
queen * In hi." autobiogmphv. Littlp
Rjcharri recaJb how when the i.**ue of
royaliiei' wa* rained Duke Peacock
chief Don Rohev punched hiri «> harri
that he rteveioped a hemia
My* Roger Armstrong, nunajnng Hi-
reetor of Ace "The people running
lhei»e Wielx ran from the cnminaJ to the
EDITORIAL
All Must Address Past Moral Failures
T>ilt ■ Meed to en in wtuch one
grat R4B m blUB matt cf the pMt
In a MBtbng mnilten of the ens-
Ml gtrauB </ Robert Jofanvn. Mi Co-
himbto mmdingi dating bech more
eeee in I9B0. end. more recently, the
bert-MlUng 'Foree* Gump" aound-
tr*ck featured, aa befita Ka aub)eet
mtfur. a chronokvai aawig nf RAB
maMCT*. In addltioa rmmermu CD
boi r«««perti»«a, aaaenbted with
kivii« «botanM|i. m pennmM doc
nneni of* BUM. mnvtafatr feitae
creative en in AmoiekD maaic And
reedere of Bfllbowd'a Comreemry
p^e n*y ranO a ptar by BMl
S*cBy. the nuBk indtatry
taontybe-
«hbnw)-
and-bntter Meoee reganluig the wel-
fare <tf(heae vlvta.
One of the nnuK tndoatry'i best-
anugtypBiodafi
protection for tbem-
• and tt«ir famfltoa Wkh the CD
rampanMa of thoee
who hiJed lo do the ngbt thlog an
maktng Ttew dollari frofn the eftte of
thci.
tfo pCTpecraled by ownen ol maelen Thnragh the efforu of indtridulB
andaongcnprT«ht*^n»tvtMB0Hi aad or^ittMkna «ho taa«e tad the tn-
BMgwnten who mainly made their doatry'i ootcry sgiiut the tordid
way (If not much of a Hvtng) tl
» RAB prwtkca of the paat, a
dentCEO FrmncH Prattn to the Mq'
Z. I9ee, aaue. wtwn. calling tftaitm to
the induatr/a cfaarttaUe endesmn.
rer. ttenlayet
an] ftirthff falDkne to otfav marketa.
».». v.»»->-.» Yea. iRBty ■rT'"'*'* to l^iL ttai^ eontlntie to benefit from Icgeadsry
Rbjthn A Blaaa raonlly qaMtloublt. eontnctiul R«B and bluet eatalofe. many of
FovDdabon-t mlatfoo to help R4fi oU^bam. (Mm. ttwngh thefc-om wUeb fly oder the bMoen <tf raa^v
intataiced.«|«teB7thrn«hlB IgDonoea toe|Xtek.«-em^itn|.- naMcawn^^a-TV^rfthetag
- - ' aeevptad fwltry f •» m m — ' ' *-—"►-*-*
lVoI-
vadA«icrthonR
the wQftfe MeDltoa U
and Billy J Knmer. "Sure,
re a lawyer, if you have the
to thaL and track evervthtng
.eWorld How many older
top by lar^w l«bete can have a benefi-
rul effert And, provided that owner-
■ihip of maMer nghu » not in d«pute. It
L* 3 relairveiv *ir*tfrhtforw»rd matter
whoni »ry maguine pub)i.-*her» gnring
wi-a> free CD* «"ilh their puWwitJon.*
Th«>ma> BoneUi. CEO of Lof Ange-
U^h*MHl Celebniv Liconjiing. art* on
hehalf of ariwtf or their enUles, indud-
■ngihr Everi> Brothers Kr»nk>eAval-
.fv DpI Shanmin. Oene Pitnev and Ray
h bought the Roulette n
Japanese independei
lumbia bought the «
Reeont* catalog tn earl
p, "One probtem •
very mrtjculous." he nyf "I met •
r«al t-anasern and i-dotter« in my
Armitirong add* it would be fo
to asftume that all labels had the t
attituden toward mte^ational k
Many were aclivety engaged m i
ple» ar>d widespread ii
censing 'If vou look a
the American Deera li
nending thing* all aroun
ll hapi^nf a lot toothers t.i
I ver\ iminrtanl iwpect of tl
^ml underMand il ^uite f
T future te^notogie* *urh
traftedfrom tJ
Mvs Lichtenntein "Some label* had
provision for 25-year contractu with
lhe*e artmA. and after that they could
nop payment."
The (io««ion of licenmng ir
A of pnontie* when
partiesi lo change thvir atui
artwt royalties Effort* t
-Som
nEMIv
*Savc
e company « nirategK mar*elin
e RouleUe purrhaw
y didn't pay
royalties lo artuitit For example. Dex-
eaiboard about uur Savoy rewoies and
«-Ttiu u> us afJting that «he be paid the
Hafhoume say* NipfMio Columbia »
now paving Gordon « widww the re«TUi-
Hte royalUe* for «ale^ m Japan
Vet MJCh mdves often bnng loo little
intraducing an intematxtnal dimen* ton
the plaintiff and defenriani clawni
decadecago
Sometime* court* provide clear u
I had the nghi* to expk>il t-
their ongmaJ deals
elicTTvnng Sfill 000 in damagefi. as >
352
fn£ tHbRNY ISSUES OF INTERNAnONAL ROYALTIES
ihr nuat«rs r BillboArd. F«b 2h. IVH )
When there •> even the vlightex
<)ue»uon over the oxi-nenhip of ■ cmm
bog. It nm otuae problem*
Almost everv month at ieiti't one
fre.h ls«*uit appear- <n the Hifth
Court h*re. wUh one jiartv claimmft
that tie nfthtf to oilalog maaters hive
beeninfnngvri
Uno of the most bitter riinput«a ha^
nffhtf to thi- CheiLK caUlofi ReiMue*
-IKi-ulM ( 'hari> Recont> vbim^ rt ha.-
nunewluaiieridhu. i.
dr\ I9UU. alletpng infnngemeni of cor>
nghi on Hi recorrtings mctudmir wotIf
hv Chuck Berr. . Snnny Bov WiUuimion,
Muddy Waters, and Buddy Guy liKei
peeled that the tnate will uke plac« nejn
ApnL There o also tndemarli acUon rr
g&rding the Chesa nwne and logo in
France and the Benelux
The increue m nich oaei does not
repreaenied 8 H of uniU ind 19* of
The BPI does not keep delaiU of
«-hiU proportion of these lain are RA B
reetauek. but s bnef survey o( tities in
Lorwion duc^Mnl and rtearence Mores
(Ugge^l^ Ihal 401 -SOI of budget
repenotrv on aale i* t\ R& B and }miz
■ Johnjton. Muddv
Lead Bellv. and John Lee Hooker
In min^i inntjincea. the appropnaie
nghlA arv taud Ut the nght«-hoMers. aJ
thougn \3tnic\ undeTmintv a gnat deal
amnuni of "gr»>'' prrxtuct m the miuiirt
EstimateK of the annual lutu«> lu iht'
rectirri tndu»Lr> thriMJgh ratjtlug pirBC\
vary from a consefN-Un-e SlOO mUIwn u>
%SM million, and a significant prupor-
MCA. for exampte, says it sold some
a.OOO copies m the U K of a Howim
Wolf compilaUon. "The Genuine Arti-
cle." which sold for more than 12
pounds ($1920)
Many of Ihe disputes in the R4B
budget market stem from the pioneer-
ing spmi of the U S record industr.'
before major Ubels lightened their
The CD boom of the '80s and '90i
produced huge demand for catalog ma-
terial, eapecially among older buyers
The market is essentially split mto two
distinct parta. Fir^L there are the high-
pnc«d. well-presented LitJes that conw
are aimed at collectors, and retail for
CO-tSO By contrast the budget mar-
ket IS charactented by "cheap and
cheerful packaging." and single discs
reuil for U-%S and four-CD sets at
about S14.50
Ace's Armstrong says that the com-
pany has some 900 tAJes, most of them
selling St s wholesale pnce of 7 20
pounds tSl I 60). making ihem a full-
pnce product The mow we can expect
and their heirs may be losing signifi
It year waa worth 90 9 million pounds
14&miUion)or 11 If of the market
Jue. and 18-9% of U K- trade deliver
1 at 33 5 million unii«. sccording t^
0 British Phonographic Industry In
>ubled. In 199U. the budget market
comptlaiMiu aa proof of cfaam of titie.
To unsuspecting inlemational open-
ion, all appears to be in ortler TV tax
kxiphote wv doMd by 1986. but not be-
fore the same lOO-plus maatery had
been licensed r^verxl thousand times
When CD* repopularmd the rrper-
inxTV many of the nghu lo manufac-
licenaes. although the »heer number of
when ,rau consder the poaaibdit^ of it
being available online ' Langford'a ei
penenee with attempting to identils
rrroniingM ted her i>i hHieve that iherf
in no mibrtituie for getting tj
-Wev,
Thu.
sRAB
. 'fi06. (
.t first Bight I
pu-ai^ material and whai la legitimate.
henc¥ the expreasiofi "gray " There la a
huge market in licenses for comptla
lions, in whMrh the unsuapeetiag as well
as the unscrupukMs can end up buying
something tea than the genuine oitKle
Master suppliers provide licenses
for veraions of aongi that they daim
•dbyoaeormon
I Tlie DAT that b-
•ound-ahkea to round out the number of
Bongs to produce a package thai can be
sold on the open marliet Dtitributorv
nth cnnfidence
Ken Nagai, A4 R dw*«or of Tokvo-
Mued -(lecuiltv Ubel JIMCO Keconl>.
i hich rvi>:<ue> manv jaxz. R& B. ami
ock titie» frum uutMile Japwi, wvc find-
ime" I ha^e 10 go through five or six
vopie. and it oin utke up lo nro yearK
Vith oW master renmting. sometimes
e nghl*
Says Andreaa Heyn. staff Lawyer at
"Great importance is attached to sut
ing the precise titles to be sold as well
as sn exclusion snd indemnification
dauae We frequently turn down cffera
becauae the legal sduaUon appears un-
clear or only nonexrluuve ngtila are
bemg offered — ths makes i
The International FedertUon of
Phonogram and Videogrmm Producers
ilFPI) prevwualy mdicaudthat it had
a commiiment to atiaeking catalog
piracy However, since the beginning of
that the different <.
tampered original,
pitch changed Oft'
ID the material
^The arUnti' were able ti. irieniifv i
reconlingy tmmediaiek . .«ui-h a.* par
aMt-time
worae after the Reagan admtmstniion
created s tax kiophole for "cultural in-
vestments' in the early 'SOb This defi
nition could include the acqutsitjon of a
sound recording maato-. urespective of
whether it was actually turned into a
manufactured prtiduct Becauae of the
tax advamagea, many artma sold their
master rights lo shelter companaa and
were able to realise significant sums
Many of these companies changed
hands rapidly, with each sale repre-
senting a 10% tax break. The paper-
wnr^ created si tbe time of sale is now
used to dupe foreign companiea that
WUh lo enter the budget market While
the DAT the Ixcnaee receives may cor-
relate to the tndi liatsig on the paper-
ofnoai in that area.
MargD LangfortL who previously un-
dertook catalog ptrary worV at IFPl. is
now s partner with the London law
firm Green David Cornray A Co
"No one apfaeoated the value of this
repertoire until CDs came along [
don't think it's going to gel any less
popular m the future, so it needs pro-
tecting This IS eapecuilly important
.hentheTrwle-Rebteillit
(V Uke^effert ih.>«.-ai
ipvnghi HxwH^rr. mnik
I the (KihlH- •kmain. U-lim
Like expert gnlfer-
njUCOOHMi
An added problem is that somf
recordings ore efTectivety m the public
domain in some parts of Europe Ger-
many, for example. <mly started pro-
tecting non-German recordings after
1972. and mtematnnal recordings be-
fore that date are technically m the
public domain and free of performera
copyrights if sold there
their way mto other European Union
stales snd to most parts of the world
where there ■ a market for them
SequeTs Fiaher saya that is Ihe mam
factor affecting hia company's busi-
neas "It's reallv annoying when you
pay for a licero* and put out a record,
and someone else has got it for free "
In Japan, master rights protection
does not apply ui iwund recordings is-
sued before 191)8. and many small com-
panies release lo» priced CDs of
Imainly non-Japane»ei maienal re-
ronled before Ihal year and only have
lo pay songwTiting incomes
The dawTMib-i> thai TUI)'<ik«>.ii»<
aaoni cituen» ..I miinli^r Mai.-, ji.^
recourw if <;ATT m^'mU-r .l-lr> .b
n..l iNu^ hfguaatam that i-n^iin-^ }>r.-
«*hi'n:' |arar\ rrmain* a (inJilrm. xal
ivmain iinimnn-ted until well mli< tin
In thv kmg term. Mtv <tn\\ fval "lii.
Hun t,t catakjg pinicv aiKivateil Ik tn
>Mler» i> lur the m^jiv UU-U l^i itHcwl
their iiwn calalug^ l>v h4\ing a lutl-liiii.-
antj-piracv iifTmal aht> can wirk »iiii
libr*n«n» and eMCum'e> in the cam|M
n> to apprehend pirate* At preaeni
hoM-ever. the funding for IFPl ■ cau
log piracy prngram appesnt to huM-
Piracy not»ithatandin(. some iMtuf~
uy obaerven say rt is eatiy lo cnticiu-
early record labeb for behavior '.hai
aeema reprehenaible by todayV aUn-
darrti Yet ihene people ««fe not wort -
ing in twdaya orrlered environment.
where the long-term survival of the m-
duairy w taken for granted. They wen-
working tn a very high-nak buainerv
that could fold St any moment For Ih
artiau. luo. It was often more iem()ting
to live for the day ami forgo royahien in
favor of a lump-sum payment
As Ace's Amstrong says. ~lf you
MtxikI yuu rather have ' C«»h when the
man ofTereil it In yt>u or the promu*- ••!
imgtOK DC SUve MrClurr w TiA^ik
and Waljyatig S/Mhr ,» Humbury
WORK GROUP'S MN8 AT 'NEXT LEVEL
Honltnu^fToni fjofft W)
dR4B
of booliegs and rerecordings
This paperwork can also be used as
the baou for auppoaedly legtumaie titie
documenu that accompany the DAT
sheltera, the new compan«s were able
to grant licenses to exploit a certain
number of tracks m a certain onler for
a given temtor^. Thousands of auch
nonexclusive bcenoes were granted, of
ten uaing the same tracks for the aaine
territory, but in a different onler. The
licenses issued by the shelter compa-
nies expressly forbade altering the
running order and also prevented the
from the compdatioo
In reality, these restrictions are fre-
i)uently ignored, snd many licensing
companiea use documents from these
t. -I've I
'o
tiaUy be serviced lo R& B n
followed by d
Work plans to service fi
remixes to sppropriste stations
AyerafT sdmits that gaming RAB air-
play will be the label's biggest chal-
lenge, but IS confident the group will
ftndshome
Mainstream RAB programraera
aren't automatically dismiaaing "I've
Got A LitUe Something For You' be-
cause of lU U K approach to RAB
Say« WQUE New Orleans PD Gerod
Stevens. Their profile doean't neces-
sarily have lo meet your sound. If lis-
teners like them, well play it*
WEDR Miami PD James Thomas
says MN8 will not be automaucally
counted out just becauae it is U.K
based *'ll won't beany more difflcult
for them than kical amsts. if the song B
there-
However. reUilera m black commu-
nities say the group may have a ddBcult
road. Chicago independent retailer
George Daniels, owner of George's Mu-
sic Room, ates poor record sales of
popular R4B>>p act All-4-0r« at ha
More aa an example of M hUT) challenge
alwsd. "i thought Uwtr song '1 Swear'
t Badd." he says 'Both groups did
had rough going here Well pull tn s
pop-soundnig set every once in s while,
but (MN8] going the rema route IS the
best way for them to do well with my
ittitrj Morae. buyer/
Lanaing, Mich -booed. l&«u>re Where
Hoiae Reconls has s broader perapec-
tive and says domestic Ri B fans don't
expect U.K acU lo sound like US
faaKdMta.
Says Morse. "lUK I bands have
more polyrhythm and overall continen-
tal flavor, although Lhia kind of group
will probably appeal more lo younger
poaedlomen-
Despite the challenge. Dee Tails re
mains optimistic MN8 will appeal to
US. record buyers He deacnhe^ the
group's music as "the funk emanaLng
out of Uy Rust to lUununaie the blind
"Origuially. we stacked our harmorues
sayv 'But once we got in and the label
warned a softer RA8 sound. *v dxtnt
overlay a whole kit of paru ~
To The Next Level.' releaaed on Isi
r Reconla m England, debutnl
al No 13 on the UK albums chart tln'
week ending May 20 The fina Mnglt-
Tve Gut A LitUe Something For \ 141.'
peakedon the U.K. singtea chart al No
2
MN8 developed considerable U K
awareness as opening act for Janet
Jackson dunng the European leg of her
concert tour m April. The group haa a
kA of energy and moves really well on
stage.' says AyerofT. who anticipalea a
large female following in the \AiS-
year-old demographK
Becauae the group is so Rucceuful
outaide the US.. MN8 haa been conUn-
uoualy lounng and will not have unw
for promotiunal datck
Although Work IS releasing -I'vi-
Gut A Utile Something For You" aa it/-
firbt U S single, aubsequent single>
won't necesaanly fultow the U.K. aflec
In addition to remising the firai
It than the foreign venion. but n noi
overiy sexy
"We're also gong with an album cm
er that offers record buyera a harder
auaoMo AM*. 10 itn
353
Artists & Music
Sony, Rhino Plan Royalty
Reforms For Older Artists
I BV BILL HOLLAND
9838
roUNOATlON
^ijlhtline" prograin
>. to be wmi rlunnn
lav have helpMt precipi
all thone involved are idenufied. lu
oit«ri. and fairiy comperuaieH. " Sonv
Mu»c'm AnUwny wnMe in Ihe leUer rial-
Denny Corde"
Producer, A&.i
Luminary, Dies
HmOnTMHH- W»m»f/R«)n5» •«»' FMt' Hdl c*ofer (aHu i«nn fllA*
chairman Jay Bermar Wfl and RIAA CHM>cMni/COO Hiary Aosen ai a VIP
nc«0Kon al tfie u 5 Capitol BuMmg Wl »p«nt me Oay on Capitot HiO mMt«>g
flosan war* hat ho»t» kK iha
a isiua ol p«<tormanc« n0nis Ba 
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